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RVARD LAW LIBRARY 



Z' 



I 

1 



'^''^ 



1^ jr 



OF CASES 

ARGUED AND DETERMINED 

t 

IN THE 

SUPREME COURT OF TENNESSEE, 

FOR THE 

EASTERN DI.VISION, 

SEPTEMBER TERM, 1881. 

FOR THE 

MIDDLE DIVISION, 

DECEMBER TERM, 1881. 

AND FOR THE 

WESTERN DIVISION, 

APRIL TERM, 1882. 



BENJAMIN J. LEA, 

ATTORNE Y-OEMERAI. AND REPORTER. 



• VOLUME VIIL 



NASH.VILLE: 
Albert B. Tavel, Law Book Publisher. 

1882. 



Entered according to Act of Cengrress* in the year 1882, by 

BENJAMIN J. LEA. 
In the office of the Librarian of Congress, at Washington. 



JUDGES OF THE SUPREME COURT 

OF TENNESSEE. 



STATE AT LARGE. 

JAMES \V. DEADERICK, Ch. J., 
PETER TURNEY. 

EASTERN DIVISION. 

ROBERT McFARLAND. 

MIDDLE DIVISION. 

WILLIAM F. COOPER. 

WESTERN DIVISION. 

THOMAS J. FREEMAN. 



ATTOHNKY GENERAL: 

BEN.IAMIN J. LEA, 

BROWNSVILLE, TENN. 



CLERKS OF THE SUPREME COURT 

OK TENNESSEE. 

J. F. DEADERICK Knoxvilm:. 

N. BAXTER, Jb Nashvilub. 

J. H. FREEMAN Jackson. 

(iii) 



CHANCELLORS 



OF TENNESSEE. 



H. C. Smith, 1st Dist Elizabethton. 

W. B. Staley, 2d " Kingston. 

W. M. Bradford, 3d " Athens. 

John W. Burton, 4th " Murfreesboro. 

W. G. Crowley, 5th " Smith ville. 

George E. Seay, 6th '^ Gallatin. 

A. G. Merritt, 7th " Nashville. 

W. S. Fleming, 8th " Columbia. 

G. H. Nixon, 9th '* Lawrenceburg. 

H. J. Livingston, 10th " Brownsville. 

J. SoMERS, 11th " Dresden. 

' W. W. McDowell, 12th' " Memphis. 

T. C. Muse,* Common Law and Chancery 

Court of Madison County, Jackson. 

(iv) 

« 

* Appointed in place of Judge H. W. McCorry, resigned. 



CIRCUIT JUDGES 



OF TENNESSEE. 



Newton Hacker^ 1st Circuit, Jonesboro. 

J. G. Rose, 2d " Morristown. 

S. A. RoDGERS, 3d " Loudon. 

D. C. Trewhitt, 4th " Chattanooga, 

N. W. McConnell, 5th " Hartsville. 

J. J.. Williams, 6th " Winchester. 

Robert Cantrell, 7th " Lebanon. 

Frank T. Reid, 8th " Nashville. 

Wm. S. McLemore, 9th " Franklin. 

J. C. Stark, lOth " Springfield. 

T. P. Bateman, 11th " Savannah. 

Clinton Aden, 12th " Paris. 

Jno. T. Carthel, 13th " Trenton. 

T. J. Flippin, 14th " Somerville. 

J. O. Pierce, 15th " Memphis. 

D. K. Young, ' 16th " Clinton. 

M. L. Hall, Cr. Ct. of Knox Knoxville. 

J. M. QuARLES, Cr.Ct.of Davidson & Rutherford, Nashville. 

C. W. Tyler, Cr. Ct. of Montgomery, Clarksville 

li. B. HoRRiGAN, Cr. Ct. of Shelby, Memphis. 

T. D. Eldridge, Pr. Ct. of Shelby Memphis. 

(V) 



ATTORNEYS GENERAL 



OF TENNESSEE. 



John Fain, * 1st Circuit, Blountville. 

Allen S. Tate, 2d " Rutledge. 

M. L. McCoNNELL, 3d " Maryville. 

A. L. Spears, 4th " Jasper. 

H. C. Snodgrass, 5th " Sparta, 

A. B. Woodward, 6th " Fayetteville. 

LiLLARD Thompson, 7th " Lebanon. 

J. H. FuzzELL, 9th " Columbia. 

B. D. Bell, 10th " Gallatin. 

M. H. Meeks, 11th " Purdy. 

R. A. Pierce, 12th " Union City. 

D. O. Thomas, 13th " Brownsville. 

J. J. DuPUY, 14th " Bolivar. 

J. R. Greene,* 15th " Memphis. 

J. M. D. Mitchell, 16th " Livingston. 

D. D. Anderson, Criminal Court Knox Knoxville. 

W. H. Washington, Criminal Ct. Davidson 

and Rutherford Murfreesboro. 

R. H, BuRNEY, Criminal Ct. Montgomery Clarksville. 

E. L. Bullock, Com. Law and Chancery Ct., 

Madison Jackson. 

G. P. M. Turner, Criminal Court, Shelby Memphis. 

. 2 ■ 

• Appoiated to fill the vacancy occasioned by the resignation of W. J. 
Dayall. 

(vi) 



CASES REPORTED. 



A. 

PAOR 

Achv V. Holland 510 

Adams Express Co., Trafford v... 96 

Alexander tv Wallace 569 

Aymett v. Butler 453 

B 

Bank, Spitz v 641 

Bass, Lightfoot V 350 

Bates r. Fuller 644 

Baxter v. Washburn 1 

Belding Bros. v. Fr ankl and 67 

Benson, Harwell v 344 

Bender v. Montgomery 586 

Blake r. Dodge 465 

Blakemore, White v 49 

Board of Publication, Foust V....652 

Boone «. State 739 

Boyd, Otis t' 679 

Brown t?. Hamlett 732 

Butler, Aymett v 453 

Butler V. Railroad Co 82 

C 

Campljell, State v 74 

Cartwright v. State 376 

Clark r. Keith \ 703 

Criftswell V. Smith 688 

Crowder r. State 669 



PAOK 

Davidson County, Nichol r 389 

Dodge, Blake r 465 

E 

Eason, Holmes v 754 

Edwards v. State 411 

E<]uitahle Ins. Co. v. MoCrea, 
Maurv «& Co 541 

Foust V. BoardjOf Publication....552 

Frankland, Belding Bros, r 67 

Fuller, Bates v 644 

Fulgum v. Nashville 635 

G 

< rarrett,"Kailroad;Co. v 438 

jGas Light^C<>.>?NSihville 406 

Goodbar,^State v 451 

Hamlett, Brown r ,...732 

Harnev v. State 113 

Harwell v, Benson 344 

Hawkins, Butt, Smith i^ Co. v. 

Lee 42 

Heidel, Insurance Co. v 488 

Herman, Vaulx v 683 

Hillsmau, I^eech t 747 

Holcomb r. State 417 

(vii) . 



Vlll 



CASES REPORTED. 



PAOB 

Holland, Achy v 510 

Holmes r. Eason 754 

I 

Insurance Co. t?. Heidel 488 

I nun ranee Co. v. Mathews 499 

Insurance Co. v. McCrea, ^laury 

&Co 513 

Insurance Co., Somerfield v ')47 

J 

Jones V. Mathews 84 

Keith, Clark r 703 

L 

Lasater, Slover v 631 

Leach v. State 35 

Lee, Hawkins, Butt, Smith & 

Co.t 42 

Leech v. Hillsman 747 

Lightfoot V. Bass 350 

Lowery v. Petree 674 

Lynn r. Polk 121,328 

Lynn v. Tellico Manufac'g Co... 29 

Malone v. Searight 91 

Mathews, Jones© , 84 

Mathews, Insurance Co. t' 499 

Mc Adams v. State ^. ...456 

McCrea, Maury & Co., E<iuita- 

ble IiLs. Co. V 541 

McCrea, Maury & Co., Insur- 
ance Co. V 513 

McCrea, Maury & Co., Royal 

Insurance Co. v 531 

McKee, State v 24 

McReynolds, Rice r 36 



PAOI 

Millard, Warden; 581 

Montgomery, Bender v 586 

Mulloy V. Railroad 427 

Mynatt V. State 47 

isr 

Naflhville^ Fulgum v 636 

Nashville, (Jas Light Co. v 406 

Nichol f. Davidson County 389 

Nichol, State t; 667 

Nolan, State ex rel Baber v 399 

Nolan, State ex rel. Nealis v 663 

O 

O'Donnell, Smith v 468 

Ordway, Telegraph Co. v 658 

Otis V. Boyd 679 

Petree, Lowery v 674 

Pike V. State \ 577 

Poe r. State 647 

Polk, Lynn v , 121, 328 

Railroad Co., Butler v. 32 

Railroad Co. v. Garrett 438 

Railroad, Mulloy v 427 

Reau. State 356 

Rice v. McReynolds .36 

Royal Insurance Co. r. McCrea, 
Maury & Co 531 

Searight, Malone v 91 

Shores v. Whitworth 660 

Smith, CresswelltJ 688 

Smith V. O'Donnell 468 

Smith V. State 386 

Smith r. State 402 



CASES REPORTED. 



IX 



PAGE 

Smith V. State 744 

Somerfield v. Insurance Co 547 

Spitz V. Bank 641 

State ex rel, Baber t;. Nolan 399 

State, Boone r..^ 739 

State V. Campbell 74 

State, Cartwright t; 37(5 

vState, Crowder v 6(59 

State, Edwards t; 411 

State ex rel. Gaines v, Whiitworth..594 

State V. Goodbar 461 

State, Harney v.„: 113 

State, Holcomb v 417 

State, Leach v 35 

State, McAdamsr 456 

State V. McKee 24 

State, Mynatt r ' 47 

State ex rel. Nealis v. Nolan 663 

State V. Nichol 657 

State, Piker 577 

State V. Poe 647 

State, Renv. 356 

State, Smith v 744 

State, Smith v 386 

State, Smith v 402 



PAOX 

State, Summitt v 413 

State, Tucker v.... (533 

State, Wright r 563 

Slover V. Lasater 631 

Summitt r. State 413 

T 

Telegraph Co. v. ( )rd way 558 

Tellico Manufactn'g Company, 

Lynn v 29 

Thompson, Whitworth r 480 

Trafford v. Adams Express Co... 96 
Tucker t). State 633 

V 
Vaulx V. Herman 683 

Wallace, Alexander v 569 

Warder v. Millard 581 

Wa.shburn, Baxter i' 1 

White V. Blakemore 49 

Whitworth, State ex rel. Gaines t>.594 

Whitworth, Shores v 660 

Whitworth v. Thompson 480 

Wright V. State 563 



CASES CITED. 



PAOK> 

Akerar. Burch 12 Heis., 607 149, 267, 2o8,666 

Anderson u. Bradie 7 Yer., 297 465 

Anderson c.Mullenix... 5 Lea, 289 272, 293 

Andrews r. State 2 Sneed, oSO 760 

Atkinson r. Micheaux 1 Hum., 312 585 



Baker r. Huddleston 3 Baxt., 1 13 

Bank v Cooper 2 Yer., 603 138 

Bank v. McCiowan 6 Lea, 703 410 

Belcher v. State 8 Hum., 4 Baxt, 19 404 

Bentley t>. Jordan 3 I^a, 361 16 

Biflsinger v. Gusteman 6 Heis., 282 45 

Black r. Fleece 2 I^a, 566 277,84 

Blackburn r. State 3 Head, 690 750 

Bledsoe V. Stokes 1 Baxt., 314 99 

Bouldinr. Ix)ckhart 1 Lea, 195 128 

Bolingv. Anderson 4 Baxt, 550 758 

Beyers r Webb 1 Lea, 70C 485 

Bradley V. CommiHsioners ..♦ 2Hum.,428..153-6,283,428,254, 126 

Bream ». Brown 5 Cold., 168 100 

Bridges t'. Robinson 2 Tenn. Ch., 720 509 

Brittoni'. Fry 2 Heis., 306 285 

Brown tJ. Vanlier 7 Hum., 239 72 

Bryant v. Smith 7 Cold., 112 487 

Burch I'. Baxter 12Hei8., 601 148, 257 

C 

Campbell t'. Fields 1 Cold , 416 351 

Campbell V Upshaw 7 Hum., 186 593 

Carren r. Brad 2 Cold., 465 500 

Carsoui;. Kichartison 3 Hayw., 231 486 

Chaffin r. Gullet 2 Sneed, 275-. 509 

Charles V. Taylor 1 Heis., 528 748 

Cherry r. Hardin 4 Heis., 199 98 

Christman v. Curl 10 Yer., 488 336 

Furmani'. Xichol 3 Cold., 432 285 



XU CASES CITED. 



PAGK. 

Clark t>. Rhodes 2 Heis., 206 ....463 

Cobb V. O'Neal 2 Sneed, 442 46 

Cocke v.Gooch 5 Heis., 305 '. 128 

Colev. State 6 Baxt., 243 48 

CollinB u. Railroad Co 9 Heis., 841 100, 107 

Cornelius r. City Bank 3 Tenn. Ch., 5 562 

Cornell r. State 6 Lea, 624 745 

Cooney y. Wade 4 Hum., 444 592 

Crozier f. Goodwin 2 Lea, 125 756 

Curtin v. State 4 Yer., 143 115, 119 

Day v. Joiner 6 Baxt., 441 409 

Dean v. Vaccaro 2 Head, 490 33, 34 

Dcberry «. Adams 9 Yer., 52 483 

DeSoto Bank «. Memphis 6 Baxt., 416 , 410 

Dodge «. Brittain Meigs, 84 ;....• 461 

Dowrie v, Francis 2 Yer.. 555 285 

Draper r. State 4 Baxt., 254 463 

Drennon v. Smith 3 Head, 389 87 

Duncan t'. Maxey 5 Sneed, 114 632 

Dunnaway t>. Stat€ 9 Yer., 350 114 

E 

Eakinv. Boyd 5 Sneed, 206 582 

Earlesr. Earles 3 Head, 366 272 

Ellis V. Hamilton 4 Sneed^ 512 593 

Ensley v. City of Memphis 6 Baxt., 554 410 

Erwin r. Oldham 6Yer., 185 694 

Ewingr. Cantrell Meigs, 377 694 

Ewingv. Lusk 4 Yer., 492 560 

Express Company v. Kaufman 12 Heis., 161 33 

Faust t>. Echols 4 Cold., 397 485 

Flatley v. Railroad Co 9 Heis., 2:^0 99 

Foggu. Giblw 8 Baxt., 464 484 

Ford V. Farmer 9 Hum., 154 128, 284 

Faster v. Burem 1 Heis., 7S4 335,561 

F:)8ter V. Jackson 8 Baxt., 433 463 

Foster v. Water Co 3 Lea, 46 504 

Fowlkes V. N. & D. R. R. Co 9 Heis., 829 107 

Franklin v. State 5 Baxt., 613 579 

Furgerson v. Miners Bank 3 Sneed, 624 209 



CASES CITED. Xtll 



PAGB. 

G 

Gannajjay r. Tarpley 1 Cold., 572 509 

Gibbfl i. Pattoii 2 Lea, 183 39r> 

Gillespie r. Goddard 1 Heis., 777 561 

Goldv. Fit«! 2Baxt., 249 736 

Giosling V. Coldwell 1 Lea, 454 574 

Governor r. McManus 11 Hum., 152 „ 98 

Grayt'.Robb 4 Heis., 74 351 

Greenlee «. Railroad Co ;.. 5 Lea, 418 ; 100 

Gregory r. Chadwell 3 Cold., 902 484 

Griffith r. Beasly 10 Yer., 434..... 98 

Grigsby t;. State 4 Baxt., 19 «..?. 464 

Giidger r. BarneH 4 Heis., 570 60 



Haley v. Mobile & Ohio B. R. Co 7 Baxt., 243 448 

Hailer.State 11 Hum., 154 j 381 

Hatton I?. Stewart 2 Lea, 236 95 

Hamilton v. Hodgkins 1 Tenn., 109 '.r,m 

Harding v. Metz 1 Tenn. Ch., 610 72 

Harper r. State 3 Lea, 211 119 

Harris v. Vaughan '. 2 Tenn. Ch., 483 60 

Hamrico 1. Laird 10 Yer., 222 101 

Hagerty v. Hughes 4 Baxt. 222 Ill 

Headerick r. Stewart 1 Tenn., 476 495 

Henry r. Keys 2 Head, 488 484 

Hessi. Sims 1 Yer., 143 483 

Hilton r. Milier 5 Lea, 395 757 

Hayes r. Cheatham 6 Lea, 7 94 

HuUr.State 6 Lea, 255 \ 67a 



Ingr. Daney 2I^a,276 561 

Ingram v. Smith 1 Head, 412 573 

laerr. Cohen 1 Baxt., 421 95 



Jones r. Jones 1 Head, 108 62 

James V. Fields 5 Heis., 394... 62 

Jones V. Jones 1 Head, 105 62, 749 

Jonesboro Turnpike Co. v. Brown 8 Baxt., 490 263 

Jones r. Littlefield 3 Yer., 133 i 98 



Kemp V. State 11 Hum., 320 461 

Kinchelow r. State 5 Hum., 10 656 



XIV CASES CITED. 



PA OB. 

Kilpatrick r. Brashear 10 Ileis., 372 m 

Kingv. Hampton 3 ilayw., 59 561 

Kirkman r. Phillips 7 Ho is., 222 T..... 13 

Keith V. Clark 4 Lea, 718 706, 712 

Keith V. Metcalf 2 Swan, 74 483 



Lain r. Lain , .3 Baxt., 30 484 

Lane I'. Jones 2 Cold, 318 .•)62 

Lancanter r. State 2 I^a, o73 384 

Lawless tJ^State 4 Lea, 173 362 

Leinan v. Smart 11 Hum., 309 45 

Leiper r. Erwin 5 Yen, 97 •')91 

Lock V. Wilson .- 9 Heis., 784 95 

L. & X. R.R. Co. V. Burke 6 Cold., 45 101 

L. A N. R. R. Co. V. Connor 9 Heis, 19 100 

Luehrman v. Taxing District 2 Lea, 426 597 

ML 

Malloy V. Clapp 2 l^a, 586 355 

Maples r. State 3 Heis., 408 579 

Marrt. Enloe 1 Yer., 153 189 

Ma.s8ie v. Jordan 1 Lea, 648 347 

Mathis V. State 3 Heis , 127 758 

Maysr. Biggs 3 Head, 37 272 

Mavs V. State 3 Heis., 430 581 

McCalgan r. Langford 6 I>ea, 117 .' 94 

McCrory v. Chaffin 1 Swan, 308 582 

McGrew v. Reasons 3 lA>a, 485 .'. 484 

Mcintosh y. Paul .• 6 Lea, 45 487 

Mc. & M. R. R. Co. I'. Huggins 7 Cold., 2T9 406 

McWhirter ». Dugla.ss 1 Cold., 592 495 

.Merriman V. Norman 9 Heis., 268 272 

Mills V. Jarvis 12 Hois., 451 5u9 

Miller Wills 2 Lea, 54 ". 571 

Mitchel V. Lipe 8 Yer., 179 613 

Moore v. Stovall 2 Lea. 543 16 

Morrell p. Fickle 3 I^a, 79 598 

Morgan v. Elam 4 Yer., 374 351 

Moses r. Wallace 7 Lea, 413 67 

Mowry v. Davenport 6 Lea, 80 61 

Munford v. Railroad 2 Lea, 393 509 

Murphy v. Southern Life Ins. Co 3 Baxt., 440 521, 546 

Myers y. Lindsay 5 Lea, 331 509 



CASES CITED. XV 



PAOB. 

IV 



N. & C. R. R. Co. i\ Smith 6 Heis., 174 107 

N.& a Railroad r. Elliott I Cold., 614 449 

N. & C. R. R. Co. I'. Prince 2 Hein., r,80 106 

N. &C. R. R. Co. ». Stevens 9 Heis., 12 107 

N. & I). R. R, Co. ». Jones 9 Heis. 27 95 

Nelson 1?. Allen 1 Yer., 1^76 ...613 

Newman r. State 7 Lea, 617 119 

Norment v. Smith o Yer., 272 169 

O 

Oliver V. Bank 11 Hum., 74 88 

Oliver v. Morgan 10 Heis., 322 478 



Park f. Meek 1 Lea, 78 467 

Parrish v, Groomes 1 Tenn. Ch., 581 574 

Patterson tj. Head 1 Lea, 664 463 

Peek r. State 2 Hum., 78 463 

Penniman r. Francisco 1 Heis,, oil 572 

Perkias t'. Gibbe 1 Baxt., 175 736 

Perry v. Pearson 1 Hum., 131 454 

Perry v. Railroad Co 5 Cold., 138 61 

Pettee r. Tenn. Manufacturing Co 1 Sneed, 381 478 

Petigrew I?. Turner 1 6 Hum., 440 72 

Pierce r.:Bower8 8 Baxt., 35:^ 758 

Pirtle r. State 9 Hum , 663 883 

Porter V. State 3 I^a, 496 418 

Pre«Jwood u. State 3 Heis., 468 420 

Price tj. Jones 3 Head, 85 95 

Pnryear v. Edmondstm 4 Heis., 43 , 574 

Q 

Qninn v. J>eake 1 Tenn. Ch., 70 146 



Rag»dale r. Mabry 2 I^a, 735 503 

Railroad v. Mitchell 11 Heis., 400 107 

Randall i;. Harris 6 Yer., 508 643 

Rankin r. Memphis Packet Co 9 Heis., 564 33 

Randall r. Payne 1 Tenn. Ch., 145 485 

Bead v. Memphis Gayoso Gas Co 9 Heis., 549 502 

Beams r. Kearns 5 Cold., 217 767 

Bedwood tj. Redwood 9 Baxt., 561 467 

Rich V. Rayle 2 Hum., 403 511 



XVI CASES CITED. 



PA OB. 

Ricks ex parte 7 Heis., 364 562 

Robinson r. State 1 Lea, 673 425 

Rodgers v. Love 2 Hum., 417 502 

Roller r. Bachman 5 Lea, 156 94 

RoKHr. McCarty 3 Ham., 169 452 

Ross V. State 4 Lea, 422 568 

Rouke V. Hooke 3 Lea, 305 395 

Ruggles y. Williams 1 Head, 141 61,748 



Sanderlinr. State 2 Hum., 315 114 

Sartin v. State 7 Urn, 679 656 

Scott V, Watson 3 Tenn. Ch., 652 562 

Scott r. Wilson Cooke, 315 : 95 

Shaw r. State 3 Sneed, 87 4(54 

Shelby t\ Hearne 6 Yer , 512 ^ 502 

Sherfy v. Argenbright 1 Heis., 143 ...613 

Sherman v. Brown 4 Yer., 661 452 

Sherrell V. Goodrum 3 Hum., 430 760 

Smith v. McCall 2 Hum.. 166 '.., 613 

« 7 

Smith V, Alexander 4 Sneed, 482 753 

Smith r. Pearce 6 Baxt., 72 757 

Smith V. St. Louis Mut. Life Ins. Co... 2 Tenn. Ch., 741 505 

Smithwick r. Anderson 2 Swan, 573 88 

Snodgrass r. Word 3 Hayw., 40 509 

Southern Life Ins. Co. v. Booker 9 Heis., 606 498 

Spurlocki'. Fulks , 1 Swan, 289 454 

Starnes t;. Allison 2 Head, 221 «351 

Stamesr. N. & C. Railroad 9 Heis., 53 ...448 

State V. Armstrong : 3 Sneed, 634 190 

State V. Bank of Tennessee 5 Baxt., 1 710 

State r. Bonner 2 Head, 135 115 

State i\ Clarksville ". 2 Sneed, 88 736 

State t?. Harrison 10 Yer., 546 562 

State V. Hicks, Ewing & Co 9 Yer., 486 608, 621 

Stater. McConnell 3 Lea, 332 ^ 290,75 

State r. Schlier 3 Heis., 284 639 

State i. Sneed 9 Baxt., 472 261 

State V. Staten 6 Cold., 257 324 

State r. Ward 9 Heis., 100 495,504,296,479 

Steel V. Mathews 7 Yer., 313 95 

St. Louis Type Foundry v. Wisdom... 4 liCa, 698 65 

Stump V. Napier 2 Yer. 35 87 

Snyder r. Summers 1 Lea, 539 16 

Swan r. State 4 Hum., 136 381 



CASES' CITED. XVll 



PAGE. 

T 

• 

Talbottr. McGavock 1 Yer., 227 612 

Taylor ». Miller 2 Lea, 153 487 

Thompson r. Paul 8 Hum., 116 146 

Timms v. State 4 Cold., 138 580 

Trabuer. Turner 10Hei8.,447 456 

Turberville v. Gibson 5 Heis., 565 748 

Tune V, Cooper 4 Sneed, 299 38, 112 

Turner i?. State •... 4 Lea, 206 362 

Turney r. DibbreU 3 Baxt., 235 760 

U 

Uhl D.Gaines 4 Lea, 352 149,267,285 

Union Bank v. State 9 Yer., 490 408 



Vance ». McNairy 3 Yer., 197 613 

Vaughanv. Carlisle 2 Lea, 525 662 

Ward V, Sanders ' 3 Sneed, 337 573 

Ware u. Sharp 1 Swan, 489 351 

Weaver*. Reese 6 Hum., 418 486 

Whitesidesr.Royle 3 Hum., 206 452 

Whitbyr. Whitby 4 Sneed, 473 61 

Williams r. Love 2 Head, 80 62 

Williams u. Register Cooke, 214 263 

Williarason'c. Smith 1 Cold., 1 584 

Wilson i\ Smith 5 Yer., 381 463 

Winters ». Fleece 4 Lea, 561 504 

Winston v. T. & P. Railroad i Baxt, 60 254, 261-4, 296 

Woodr. Neely 7 Baxt, 586 60 

Woodfolk V. Union Bank 3 Cold., 499 431 

Ware*. Greer 2 Swan, 172 756 



Y'oung tJ. Young 7 Cold., 461 351 



CASKS 



ARGUED AND DETERMINED 



IN THE 

SUPREME COURT OF TENNl^SSEE, 



FOR THK 



EASTERN DIVISION, 



KNOXVILL5, SEPTP:x\IBER term, 1881. 



John Baxter v. W. P. Washburn et vl. 

1. Corporation. Sale of land. Pmrhaae monei/, Unnd.*, The complain- 

ant sold land to certain persons, who obtain.'d a charter of incor- 
poration for mining purposes, and transferred the land to the cor- 
poration; about a year afterwards a new contract was entered into 
by complainant, the purchasers, and the corporation, by which the 
complainant conveyed the land to the corporation absolutely, re- 
tailing the payment of the consideration, but retained tlie purchase 
notes of the individual purchasers, and the company conveyed the 
land in trust to secure its bonds for double tlie amount of the pur- 
chase money, and deposited tliose bonds with the complainant to be 
sold, and a sufficiency of the proceeds applied to the satisfaetion of 
the purchase notes. Hvhl, that the company was in reality ihe prin- 
cipal debtor for the land, and the jdedjSre of its bonds binding en it. 

2. Same. BomU. Bona fido hold*r. Assignment. The trust assignment 

of the corporation to secure its bonds stated it to l)e the intention of 
the company to put the bonds on the market and sell them, and pro-' 
vided for the equal payment of all of these bonds to any houa fide 
holder, but the bonds could not be sold exc *])t a small nnml)er. 
Seldy that the complainant was a hoim tide holder of the bonds 
pledged which could not be sold, and entitled to share ],ro rata in the 
trust assets. 

1 — VOL. 8. 



8L 1 
lOL 113 



KNOXVILLE: 



Baxter r. AVashhurii. 



3. Injunction Bond. Surety. Not liablef when. The trustee sold the trust 
proj)erty for the benefit of the bondholder.-*, and complainant became 
the purchaser, executing his notes on time for the purchase monev. 
About the time the first of his notes fell due he filed this bill, on be- 
half of himself and all other bondholders and beneficiaries, to enjoin 
the coUecticm of his notes, to obtain a credit thereon for his propor- 
tion of the trust assets on the bonds held bv him, and for the share of 
certain other bonds attached, and for a settlement of the trust. The 
i'omplainant obtained a fiat for an injunction, restraining the trustee 
from taking any steps to collect cr)mplainant's not<s except in this 
cause, unless authorized bv order of the court, upon giving bond with 
se(iiirity in the sum of five thousand dollars as required by law. He 
gave bond with security in the jn-escribcd penalty, conditioned to 
prosecute the bill of injunction with efrect, or in case he should fail 
therein, or the same be dismissed, to abide by, perform and fulfill the 
judgment or decree of the court, and ])ay all costs and damages that , 
may be sustained for wrongfully suing out the injunction. No in- 
junction w:i.s in fact issued, and the c«)mj)lainant was declared enti- 
tled to the credits, and a decree rendered against him for the residue 
of his purchsise notes. He became insolvent between the suing out 
of the injunction and the final hearing of the cause. Held, upon mo- 
tion for juclgment against the surety on tlie injunction bond, that the 
surety was not liable. Cooper, J., dissenting. 



FROM KNOX. 



Appeal from the Chancery Court at Knoxville. W. 
B. Stalky, Ch. 

W. M. Baxteu for complainant. 

A. S. PiiossER for defendants. 

The court adopted the opinion of Chancellor Staley 
as the opinion of the court upon the point embodied 
in the last svllabus above. It is as follows: 

Complainiint in this cause filed his bill in October, 
1873, and therein prayed for an injunction to restrain 
Washburn, trustee, from collecting, except in this court, 



SEPTEMBER TERM, 1881. 



Baxter v, Washburn. 



certain notes executed by complainant to Washburn, 
trustee, for land sold by the latter^ to complainant. 
A fiat was obtained for an injunction to issue, on 
bond being given with security in the penalty of five 
thousand dollars. On the 2 1st of October, 1873, a 
bond was executed in the penalty named by complain- 
ant as principal and Bailey and Thornburgh as sure- 
ties. The condition of the bond is as follows : 

" Now, if said John Baxter shall prosecute said 
bill of injunction with effect, or in case he should 
fail therein, or the same be dismissed, shall abide by 
perform and fulfill the judgment or decree of said 
court, and pay all costs and damages that may be 
sustained from wrongfully suing out said injunction, 
then the above obligation to be void, otherwise t% 
remain in full force and effect.^^ 

No injunction was, in fact, ever issued. The de- 
fendants answered ; the cause came to a hearing in 
April, 1879, when the bill was sustained; the relief 
prayed for was granted*; complainant obtained cerj:ain 
credits on his notes, and judgment was rendered against 
him for the remainder thereof. This judgment has 
not been collected, and the cause is now before me 
-on an application for judgment against the sureties on 
the injunction bond. 

When a bill is brought to enjoin a judgment at 
law, the condition of the injunction bond is to pay 
the judgment, interest and costs, or to perform the 
decree of the court, in case the injunction be dis- 
solved, and also to pay such damages as may be sus- 
tained by the wrongful suing out of the injunction. 



KNOXVILLE : 



Baxter v. Washburn. 



When, before judgment, the investigation of the 
question involved has been drawn by injunction inta 
a court of chancery upon the ground of concurrent 
jurisdiction in that court, the condition of the bond 
shall be to pay costs and damages awarded by the 
bill. In the absence of statutory provision prescribing 
the penalty and conditions of the bond, it is within 
the competency of the judge to order, and the clerk 
to take a bond with such conditions of liability as 
the judge may deem proper. And when the condi- 
tions of a bond are broader than provided by law or 
the order of the judge, the surety will not be liable 
beyond the order or the requirements of the law. 

The order of the judge in this case prescribes the 
penalty of the bond, but no condi.ions. The com- 
plainant did not by his bill seek to enjoin a judg- 
ment ; and if there be any statutory provision appli- 
cable to the case it must be sub-sec. 2 of sec. 4439 
of the Code, which has been referred to, and which 
provides that the condition of the bond shall be to 
pay the costs and damages awarded on dismissing the 
bill. It follows, therefore, that as there was no order 
of the judge prescribing the conditions of the bond 
in this case, and as there is no statutory provision 
requiring, in such a case as this, the condition to 
abide by and perform the judgment of the court, that 
condition is of no force. A condition inserted in a 
bond by a clerk, not authorized by law or the order 
of the judge, is not binding on the sureties. 

But again, as we have seen, no injunction was 
ever issued in this cause, and consequently the condi- 



SEPTEMBER TERM, 1881. 



Baxter v. Washburn. 



tion of the bond, to pay all such costs and damages 
as may be sustained from wrongfully suing out the 
writ of injunction, was not breached. 

If, however, a writ of injunction had issued, there 
could be no damages recovered by defendants in this 
case. The object of the bill was to obtain certain 
credits on the notes executed by complainant to Wash- 
burn, trustee, and to restrain him from taking any 
steps to collect said notes except in this court. The 
condition of the bond is, that it shall be void if 
complainant prosecutes his injunction bill with effect. 
And, in the language of the statute, the costs and 
damages are to be paid upon the dismissal of his bill. 
Buti his bill was not dismissed ; the relief was not 
denied, but granted; he prosecuted his injunction bill 
with effect, and therefore the bond was, by its own 
terms, void. The loss, in this case, did not arise from 
the filing of the injunction bill. Judgment on the 
notes, upon an adjustment of the equities, could have 
been, and, indeed, was taken on them in this court. 
The case was begun in 1873, but never reached a 
final decree until 1879, and the loss resulted, no doubt, 
from this long delay. 

From the statement, in the nature of a report, 
made out by the clerk, I am of opinion that no 
judgment can be rendered against the sureties on the 
injunction bond. I never knew until I saw that 
statement that no injunction had been issued. Had 
counsel called ray attention to that fact, it would have 
saved some trouble and a little expense: 2 Tenn. Ch. 
Rep., 263, 356, 



6 KNOXVILLE 



Baxter v. Washburn. 



McFarland, J., said : 

i 

I adopt this opinion, except so far as it is pred- 
icated upon the fact that no injunction was in fact 
issued. This I do not think material; but the other 
reasons given for refusing the judgment are sufficient. 



Cooper, J., delivered the opinion of the court upon 
all the points decided except upon the point embodied 
in the last syllabus, and his dissenting opinion on 
that point : 

On May 2, 1870, the complainant, John Baxter, 
contracted to sell to M. C. Wilcox, E. K. Wilcox 
and others, a body of land, with the personal prop- 
erty thereon used for mining coal, lying on Emory 
river in Roane county, Tennessee, for $40,000, pay- 
able at a future day in instalments with interest. 
Afterwards, the purchasers obtained a charter of in- 
corporation under the name of the Wilcox Mining 
Company, and transferred this land and other lands 
to the company, and converted their interest in the 
land into capital stock in the company. On June 1, 
1871, the Wilcox Mining Company, by deed of that 
date, reciting that it needed "additional means to pay 
its debts and to extend and carry on its business, and 
had resolved to raise the same by the issuance and 
sale of its bonds," conveyed all its land, including the 
tract bought from Baxter, with the personal property 
thereon used in mining and transporting coal, to W. 
P. Washburn in trust to secure the payment of the 



SEPTEMBER TERM, 1881. 



Baxter v. Washburn. 



bonds, to be issued and sold by the company, and 
the coupons thereto attached. The deed recited that 
the company had issued one hundred bonds of one 
thousand dollars each, payable to bearer in ten years 
from the 15th of July, 1871, bearing interest at the 
rate of seven per cent, per annum, payable at the 
Bank of America, New York, or the Exchnncre and 
Deposit Bank of Knoxville, Tennessee, ^^ according to 
the tenor of the coupons to said bonds attached, which 
it is intended to put upon the market and sell." ' The 
deed further provided that, in the event the company 
failed "to pay the coupons attached to all or to any 
one or more of said bon<ls, as the same mature and 
are presented for payment," the trustee, ''upon being 
requested to do so by any bona fide bondholder of 
any such unpaid coupon or bond," should take pos- 
session and >ell the land and other property free from 
the equity of redemption, on a credit of one and two 
years in equal instalments, taking notes with good 
security, and retaining a lien. It further provided 
that out of the proceeds of sale the trustee "shall 
retain a reasonable compensation not exceeding two 
per cent, on the amount realized," and apply the bal- 
ance to the payment of the bonds and the interest 
accrued and unpaid thereon pro rata until they arc 
fully paid. 

On the same day that this deed was executed, i\n 
agreement was entered into between John Baxter, the 
Exchange and Deposit Bank of Knoxville, and the 
Wilcox Mining Company, which was reduced to writ- 
ing, and signed, the mining company signing by "M. 



8 KNOXVILLE: 



Baxter r. Washburn. 



C. Wilcox, j»i< sident/' etc. This agreement recited 
that John IVxter had that d.iv united with E. P. 
Bailey in f*(>inrving to the Wilcox Mining Company 
certain lands in the deed of conveyance mentioned, in 
consideration • i' $12,600, secured by the notes of M. 
C. and K. K. Wilcox, and one hundred coupon bonds 
of the Wilcnv Mining Company for §1,000 each, the 
first couj)on> maturing January 15, 1872, pledged as 
collateral seiJniiy for the payment of said notes. The 
agreement dcs ribed the notes given by M. C. and E. 
K. Wilcox In Baxter, for the §12,01)0, the purchase 
money of th- land conveyed by Baxter and Bailey to 
the Wilcox .ining Company, aiul recited that the 
co/npany ha i deposited its one hundred bonds for 
$1,000 wiih '.e Exchange and Deposit Bank as col- 
lateral secnri: for tlie ]>ayment of said purchase money 
to Baxter. I ..<» agreement then proceeded thus: *^And 
it is hcrel'V -lipulated between tiie ])arties hereto that 
said Exchan. • and Deposit Bank shall ])roceed to sell 
said bonds s best it can and at its discretion, and 
apply the pi' ^eds as follo\ys, to-wit : the proceeds of 
the first ten i (>n<ls shall be paid to said Jolin Baxter; 
the procee<l> «if the second ten bonds shall be paid 
to the said \\'ilcox Mining Company; and the pro- 
ceeds of the residue of 'said bonds, so far as may be 
necessary, shall be paid to s.iid John Baxter until his 
three notes aforesaid, \vith interest accrued thereon, 
shall be ])a;«l by the \Vilcox Mining Company. In 
consideration of this agreement, the said Baxter agrees 
to waive his equitable lien for the purchase money 
upon the land so sold by him.'' 



SEPTEMBER TERM, 1881. 



Baxter v. Washburn. 



The bonds were deposited with the bank under 
this agreement; some of tli^m were sent to the de- 
fendants, the Drake Brothers, in New York for sale. 
Some of these bonds were sq\d or otherwise disposed 
of by the bank or the compiin}^ but the greater part 
remained in the custody of the bank, not being mar- 
ketable. 

In April, 1872, the company having failed to pay 
the January coupons of that year, the trustee, at the 
request ot Baxter, took possession of the property con- 
veyed by the trust deed and advertised it for sale. 
The mining company sued out an injunction, and the 
sale was postponed by the trustee to a given day, at 
which time, the injunction having been dissolved, he 
proceeded to sell, and the property was struck off to 
Baxter at the price of $42,000, who took possession 
and sold some of the personalty, but afterwards re- 
fused to comply with the terms of sale. The trustee 
again advertised, and, on the 12th of October, 1872, 
sold the property, when Baxter once more became the 
purchaser at $20,000. He complied with the terms 
of sale by giving his two notes in equal instalments 
at one and two years, with E. P. Bailey as his surety. 

On the 21st of October, 1873, shortly after his 
first note fell due, Baxter filed the present bill, ''for 
himself and all other bondholders and beneficiaries," 
against the trustee, the mining company, its assignee 
in bankruptcy, the company having been declared bank- 
rupt, M. C. and E. K. Wilcox, the Drake Brothers, 
the Exchange and Deposit Bank, and the holders of 
the bonds without naming them. The main object of 



10 KNOXVILLE : 



Baxter r. Washburn. 



the bill was to enjoin the collection of his notes to 
the trustee, and to obtain a credit thereon for the 
proportion of the purchase money of the trust prop- 
erty which the bonds of the mining company, still 
held bv the bank as collateral security for the com- 
plainants' debt, might be entitled to. For the pur- 
pose of obtaining the latter object, the holders of any 
of the bonds were required to come in and file them. 
The bill set forth the facts herein before recited, gave 
the number of bonds disposed of by the bank, and 
the number retained. It further stated that the Drake 
Brothers, of the bonds entrusted to them by the bank, 
had retained and converted to their own use eighteen 
bonds, claiming to hold them for advancements made 
to the Wilcox Mining Company; that at the time of 
the conversion on the 3d of April, 1872, these bonds 
were worth sixty cents on the dollar, and that com- 
plainant h:id brought suit at law against W. F. Drake, 
one of the partners, for this sura. The bill sought 
to hold the other partners liable for the f^ame amount, , 
and asked iov and obtained an order for an attach- 
ment of tlie share of these bonds in the proceeds of 
the trust sale, alleging that the bonds were still held 
by the firm. The Drake brothers, W. F. and A. A. 
Drake, demurred to the bill, but tlie demurrer was 
overruled, and no question is made, in the ari^ument 
submitted in their behalf, on the demurrrr. They 
then answered, admitting the possession of the eighteen 
bonds, and claiming them as having been deposited 
with them by the agent of the Wilcox Mining Com- 
pany as collateral security for money advanced by them 



SEPTEMBER TERM, 1881. 11 

Baxter v, Washburn. 

to the company. The other defendants filed answers, 
and the holders of bonds came in by petition, and 
were permitted to answer and present their bonds. 
Sucli proceedings were had in the cause that a final 
hearing on the merits was had on the 1st of April, 
1879. The chancellor was of opinion, and so declared, 
that the complainant was entitled to have the pro rata 
share of the bonds undisposed of, and still held, by 
the bank as collateral for Baxter's debt, in the trust 
fund applied as a credit on his notes given for the 
property at the trust sale, and that the other bonds 
were severally entitled to be paid pro rata out of the 
residue of the purchase money, and the holders of 
these bonds were required to come forward and file 
them in a given time. The court further held that 
the . Drake Brothers were liable to Baxter for the 
value of the eighteen bonds wrongfully withheld by 
them, and that complainant was entitled to subject 
the pro rata share of these bonds in the trust .funds 
to the satisfaction of this demand. The last sale 
made by the trustee was declared to be valid. It 
was referred to the master to take proof and report 
the number of bonds held by the various parties, the 
amount due thereon, the trust fund, and the pro rata 
of each bondholder therein after deducting the expenses 
of the trust. The clerk .was also required to ascer- 
tain and report the value of the eighteen bonds on 
the 3d of April, 1872, with which the Drake Brothers 
were to be charged. 

The master made a report of the matters of refer- 
ence, which was, with one modification in favor of 



12 KNOXVILLE: 



Baxter r. Washburn. 



complainant, confirmed. He found that the eighteen 
bonds in the hands of the Drake Brothers were worth 
on April 3, 1872, sixty cents on the dollar, and the 
chancellor rendered a decree in favor of the bank for 
the use of Baxter against A. A. Drake for this value 
with interest, a judgment in the suit at law having 
been previously recovered against W. F. Drake, the 
othep partner, for the bonds at the same valuation. 
The court also subjected the jpro rata dividend of the 
eighteeij bonds in the trust fund to the satisfaction 
pro ianto of the decree against Drake. The chancel- 
lor rendered a decree against complainant for the bal- 
ance due from him on his purchase notes after de- 
ducting the jyro rata on the bonds held by the bank 
for him, and the pro rata of the eighteen bonds held 
by Drake Brothers, and ordered that if the money 
was not paid into court within twenty days the prop- 
erty should, by virtue of the lien retjyned, be sold 
in satisfaction thereof. The proceeds of this decree 
were directed to be paid to the other bondholders in 
the proportion of the amount found by the report to 
be due them severally. Execution was awarded against 
Baxter and his surety, E. P. Bailey, for any balance 
of this decree not paid by the sale of the land and 
other property. The money not being paid, the prop- 
erty was sold, and brought- $1,250. Afterwards, the 
bondholders, other than Baxter and the Drake Broth- 
ers, moved for a judgment against the complainant's 
surety on his injunction bond for the balance of the 
recovery against complainant after deducting the net 
sale of the property, and it was referred to the mas- 



SEPTEMBER TERM, 1881. 13 

Baxter v. "Washburn. 

ter to ascertain and report what damages had been 
sustained by reason of the suing out of the injunction. 
The master reported, at a subsequent term, the facts 
touching the suing out of the injunction, and that an 
execution had been issued upon the decree against 
Baxter and Bailey and returned nulla bona. The 
master found the damages to be the uncollected bal- 
ance due upon the decree. The chancellor was, how- 
ever, of opinion that upon the facts stated in the re- 
port no damages had accrued on the bond, and no 
judgment could be rendered against the surety. The 
defendant S. B. Lyon, one of the bondholders, appealed 
from this decree, "and all former decrees rendered in 
the cause," and the Drake Brothers have brought the 
case up by writ of error. 

The depositions taken by the Drake Brothers on 
their own behalf were, upon exceptions taken by the 
complainant in advance of the hearing, excluded for 
defects specified, and no error has been assigned on 
the chancellor's ruling in this regard. Excluding these 
depositions, there is ample evidence that the eighteen 
bonds were placed in the hands of Drake Brothers 
by the Exchange and Deposit Bank for sale, and that 
the bank, for the benefit of the complainant, was en- 
titled to recover from them the value of these bonds, 
waiving the tort, by bill and attachment in equity: 
Kirkman v. Phillips, 7 Heis., 222 ; Baker v. Huddle- 
Stan, 3 Baxt., 1. And the weight of evidence would 
be in favor of the finding of the chancellor even if 
the excluded depositions are read. For, the witnesses 
for the Drake * Brothers, and the brothers themselves 



14 KNOXVILLE: 



Baxter r. Washburn. 



prove that the bonds in controversy were sent to the 
Drake Brothers by the Exchange and Deposit Bank 
to be sold and the proceeds accounted for to the bank; 
that while the cashier of the bank and the agent of 
the mining company were both in New York, these 
bonds were entrusted to the agent of the company to 
raise money for the bank; that the negotiations for 
a sale of the bonds were made with the knowledge 
and assistance of the Drake Brothers, and that the 
bonds were then returned to the Drake Brothers. 
The catshier and the agent both testify that the latter 
handed the bonds to the former, and that he again 
deposited them with the Drake Brothers. The wit- 
nesses, whose depositions are excluded, do say that the 
bonds were returned by the agent. There is a con- 
flict of testimony on this point, but the circumstances 
are all in favor of the version of the complainant's 
witnesses. The value of the bonds is to be estimated 
at the date of the conversion, and the evidence sus- 
tains the finding of the master, which w^as adopted by 
the court by confirming the report. There is no 
error in so much of the chancellor's decree. 

The complainant in his bill asserts that his orig- 
inal contract of the 2d of May, 1870, with the Messrs. 
Wilcox and others was, at the request of the latter, 
cancelled, all the purchasers, except M. G. and E. K. 
Wilcox, surrendering all claim to the land and other 
property, and the two Wilcoxes, then the .sole parties 
in interest, entered into the new contract of the 1st 
of June, 1871. These allegations are admitted in the 
answer of the assignee in bankruptcy of the Wilcox 



SEPTEMBER TERM, 1881. 15 

Baxter v. Washburn 

Mining Company, and by that company and the Wil- 
coxes in allowing the bill to be taken for conTessed 
against them. These are the only parties who could 
put the facts in issue. In this view, the Wilcoxes 
and the mining company were one and the same in 
interest, and the agreement and trust conveyance of 
the 1st of June, 1871, >vere virtually one transaction, 
and so treated by all the parties. Clearly, therefore, 
the complainant would be entitled to the bonds of the 
mining company, deposited with the Exchange and 
Deposit Bank under the agreement, as collateral se- 
curity for the purchase money due him for the prop- * 
erty conveyed. And, if there were nothins; else in 
the case, the security of the trust assignment would 
enure to his benefit to the extent of the bonds not 
^old to others. 

It is first insisted on behalf of the bondholder who 
appeals, that there is no proof that the mining com- 
pany had anything to do with the transaction of the 
1st of June, 1871 ; that it took the land conveyed 
by complainant and Bailey free from any lien for the 
purchase money; that it could not become security 
for the new purchase notes, and that the pledge of 
the bonds as collateral was a misapplication of the 
corporate funds, nlira vires and invalid. Upon the 
<]uestion of fact raised by this argument, the record 
is in conflict with the position assumed. The Wilcox 
Mining Compnny is a party to the agreement of the 
1st of June, 1871, the same being i?igned by its pres- 
ident, and the conveyance of the land and other prop- 
erty is made on the same day to the company, and 



16 KNOXVILLE: 



Baxter v. Washburn. 



the company re-convey to Washburn in trust to secure 
the bonds in controversy. As between the complain- 
ant on the one part and the mining company and the 
Wilcoxe.s on the other, the facts alleged in the bill 
are admitted, and proved by M. C. Wilcox, so far as 
they bear on this point. The deed to the company 
does recite, in accordance with the agreement, the pay- 
ment of the purchase money, but such a recital would 
not affect the vendor's equitable lien for unpaid pur- 
chase money, nor, of cc»urse, estop him from showing 
the truth : Bentley v. Jordan, 3 Lea, 361. The ob- 
ject of the recital was to secure to the subsequent 
holders of the bonds the benefit of the property un- 
der the trust assignment free from a lien for purchase 
money which would be prior and superior thereto. 
The vendor was left at liberty to secure himself other- 
wise. And what was ' done was in effect the retention 
by the complainant of the original liability of the two 
Wilcoxes for the purchase money, and the assumption 
by the company of the same debt to be paid out of 
the proceeds of its bonds. It is the ordinary case 
of a sale and conveyance of land, and the assumption 
by the vendee of the payment of a debt of the ven- 
dor for the same land to a former owner. In form, 
the Wilcoxes were the principal debtors, and the bonds 
of the company only collateral security, whereas in 
reality the company was the principal debtor and the 
Wilcoxes the sureties : Snyder v. Summers, 1 Lea, 539; 
Moore v. Stovall, 2 Lea, 543. And the pledge or 
payment of its bonds on the debt would not be ultra 
vires, but proper. 



SEPTEMBER TERM, 1881. 17 

Baxter v. Washburn. 

It is next argued- that complainant is not entitled 
to the benefit of the pro rata of the trust fund by 
reason of the bonds claimed, because the terms of the 
trust deed exclude from its benefits all bonds not 
actually sold. The argument requires for its support 
a very literal interpretation of some of tiie language 
used in the trust deed. That instrument does recite 
that the company had issued the bonds, ** which it is 
intended to put upon the market and sell." And it 
equally recites that it needed "additional means to pay 
its debts," and "had resolved to raise the same by 
the issuance and sale of its bonds." But the deed 
provides for the equal payment of all these bonds to 
any bona fide holder, and it cannot be doubted that 
any person to whom the bonds were properly pledged 
for a debt of the company would be such a holder. 
All of the bonds in the hands of the appellants, the 
Drake Brothers, are claimed under a pledge, and about 
half of those produced by the appellant Lynn were 
oDtained in a similar way. The intention was un- 
doubtedly to sell the bonds, and pay the debts of the 
company, including the debt of complainant, out of 
the proceeds of sale, but the record shows that the 
parties were unable to carry out the intention because 
the bonds could not be sold. The pledgees not being 
able to realize by a sale, have the right to enforce 
the bonds themselves against the company nnd the 
trust fund to the extent of their respective demands. 
The provisions of the trust deed were notice to all 
persons who might come into rightful possession of 

any of these bonds, that the bonds were all equally 
2 — VOL. 8. 



18 KNOXVILLE: 



Baxter r. Washburn. 



secured. The fact that one holder had no notice of 
the transaction of the company with another, would 
not affiect the rights of the latter. 

It is suggested in the argument submitted on be- 
half of the appellants, that Baxter's title to the land 
has failed, the property having been proceeded against 
and sold for purchase money due from him to his 
vendor. The fact does not appear in this record, nor 
are there any pleadings on which to base any relief 
as between any of the parties on this ground. 

The chancellor's decree on the merits, and upon 
the report of the master based thereon, will be af- 
firmed. 

The only remaining question aribes upon the mo- 
tion made for a judgment against the surety of the 
complainant on his injunction bond for the unpaid 
balance of the judgment or decree against complainant 
on his purchase notes, execution having been returned 
thereon mdla bona. The facts bearing on this point 
are set out in the master's report, to which no ex- 
ceptions were filed. The main object of the original 
bill, as we have seen, was to obtain a credit on the 
complainant's notes for the pro rata to which the 
bonds held by him would be entitled out of the trust 
fund, the trustee having declined to allow the credit. 
The bill prayed **for an injunction to restrain W. P. 
Wiishburn from taking any steps to collect your ora- 
tor's notes, or either of them, except in this court in 
this cause, unless authorized by order of this court.'' 
The fiat obtained directed an injunction to issue as 
prayed, "upon complainant's entering into bond with 



SEPTEMBER TERM, 1881. 19 

Baxter v, Washburn. 

security in the sum of live thousand dollars, as re- 
quired by law." The Code, sec. 4439, provides that 
when, before judgment at law, the investigation of the 
questions involved has been drawn by injunction into 
the court of chancery, upon the ground of a concur- 
rent jurisdiction in that court, the condition of the 
bond shall be to pay costs and damages awarded by 
the chancery court on dismissing the bill. The bond 
given in this case, on October 21, 1873, has the fol- 
lowing condition: "Now if the said John Baxter shall 
prosecute said bill of injunction with effect, or in case 
he should fail therein, or the same be dismissed, shall 
abide by, perform and fulfill the judgment or decree 
of said court, and pay all costs and damages that may 
be sustained from wrongfully suing out said injunction, 
then the above obligation to be void, otherwise to 
remain in full force and effect." No injunction was 
in fact ever issued. Washburn was served with sub- 
pcena to answer on the 29th of October, and filed his 
answer on the 23d of December, 1873, and submitted 
to the jurisdiction of the court, joining in the prayer 
of the bill for a construction of the trust deed, and 
such orders and decrees as would protect him. On 
the 30th of March, 1878, an order was made as foK 
lows: "Affidavit having been made by W. P. Wash- 
burn that the security on the note enjoined is insol- 
vent, and that the principal has assigned his property^ 
And he having moved the court for an order on John 
Baxter to give an injunction bond, in the sum of 
$10,000, on or before the second day of the next 
terni, or said injunction will be dissolved, the court 



20 KNOXVILLE : 



Baxter v. "Washburn. 



is pleased to, and does make said order, and if the 
same is not complied with on or before the second 
day of next September terra, the said injunction here- 
tofore granted in this cause will be dissolved." The 
complainant never gave any bond under the order, 
but on September 17, 1878, filed an answer tendering 
certain bonds of the Wilcox Mining Company, and 
claiming to be entitled to the larger portion of the 
notes enjoined, stating that a lien was retained on the 
land to secure the notes, and that no additional se- 
curity was necessary. No further order was made in 
regard to (he execution of said bond. The chancel- 
lor's decree on the merits was, "that the bill of com- 
plainant is sustained by the proof, and that complain- 
ant is entitled to the relief therein sought, except as 
to the Drakes," and a reference was made to the 
master to take the accounts required. Upon the com- 
ing in of this report, the judgment against complain- 
ant and his surety on his notes was rendered. There 
has been a return of nulla bona on the execution 
issued thereon for the balance unpaid by the sale of 
the trust property. The master adds : " That John 
Baxter made an assignment of all his property on the 
30th of January, 1878, and that prior to that time 
the above amount (the balance due on the judgment), 
if there had been a judgment, could have been col- 
lected." 

The bill sought to enjoin the trustee from taking 
any steps to collect complainant's notes except in the 
court of chancery, and in the particular case. It 
proceeded upon the ground that the court of chancery 



SEPTEMBER TERM, 1881. 21 

Baxter v, Washburn. 

had concurrent jurisdiction with the courts of law to 
render judgment on the notes, and so this court haa 
invariably held where, before judgment at law, the lit- 
igation has been transferred to this court by a debtor 
who seeks equitable relief. The case falls, therefore, 
within the provision of the Code quoted, and a bond 
conditioned for the payment of costs and damages was 
proper. The bond is in lieu of the payment of the 
money into court, and the damages occasioned by the 
injunction would be any loss occasioned by the non- 
payment of the amount actually due at that time, if 
the debtor were solvent. The loss of any portion of 
the debt by the subsequent insolvency of the princi- 
pal would be the natural and proximate result of the 
injunction. Unless, therefore, some special ground ex- 
ists in this case to take it out of the general rule, 
the surety would be liable. 

One special ground relied on is found in the fact 
that no injunction was ever actually issued. But the 
effect of an injunction ordered is the same before ai 
after its issuance upon those who have knowledge of 
the order, and mere delay in issuing the injunction 
will not prevent the effect: Farnsworth v. Fowler, 1 
Swan, 1 ; Boil^ v. .Boils, 1 Cold., 284. To entitle 
a party to damages upon the dissolution of an injunc- 
tion, it is sufficient that he has rendered himself 
obedient to it, though the writ may never have been 
served * upon him : Cumberland v. Hoffman, 39 Barb., 
16. If the rule were otherwise, a party might be 
punished for disobeying an order for an injunction of 
which he had notice, and then deprived of the in- 



22 KNOXVILLE: 



Baxter v, Washburn. 



demnity of the injunction bond by the neglect of the 
other party to sue out the injunction after he had 
obtained all its benefit by the notice. And the Su- 
preme Court of Arkansas has held that the sureties 
in the bond are estopped to deny that the injunction 
was granted: Fowler v. Scott, 11 Ark., 675. It is 
thfe duty of the party who has perfected his right to 
the writ, with the knowledge of his opponent, to 
notify the latter of his intention not to proceed under 
it, if he concludes to abandon it. In the present 
case, the complainant not only relied, but insisted upon 
his injunction, and resisted the application to require 
him to give a larger bond upon the ground that the 
security was ample under the circumstances, treating 
the injunction as in full force. Now, he seeks to 
deprive the aggrieved parties of the security actually 
given. 

The main ground relied on to take this case out 
of the rule is, that the complainant has successfully 
prosecuted his suit and there has been no breach of 
the condition of the bond. The condition is to pros- 
ecute the bill of injunction with effect, or in case he 
should fail therein, or the same be dismissed, to abide 
by, perform and fulfill the judgment or decree of the 
court, and pay all costs and damages that may be 
sustained for wrongfully suing out the injunction. The 
injunction was against proceeding on the notes or either 
of them at law, and the object of the bill is to have 
an equitable set-oflf. To the extent of that set-off so 
fer as the debt enjoined is concerned, and in other 
respects unconnected with the debt, the complainant 



SEPTEMBER TERM, 1881. 23 



Baxter r. Washburn. 



has successfully prosecuted the bill of injunction lo 
effect. As to so much of the debt as is not covered 
by the set-off, the bill of injunction, that is the in- 
junction, hns not been successfully prosecuted : White 
V. Clay, 7 Leigh, 68. The complainant has failed 
therein, and judgment has been rendered against him 
for that part of the debt, the injunction dissolved, 
and the bill in the eve of the law dismissed. A 
formal order of dismissal is not require*!. That part 
of the debt has been lost by the insolvency of the 
complainant pending the injunction, and by reason of 
the injunction. The bond, in this contingency, re- 
quires him to abide by, perform and fulfill the judg- 
ment or decree of the court, to the extent of the 
costs and damages adjudged for wrongfully suing out 
the injunction. There has been a breach of the bond, 
and the surety is, in my opinion, liable. My brother 
judges concur, however, with the chancellor on this 
point, and adopt his opinion as the opinion of the 
court, which is herewith filed. 

The decree below will be affirmed, and the appel- 
lants will pay the costs of this court. 



24 



KNOXVILLE: 



The State v. McKee. 



apt 485 



The State ex rel, A. G. W. Puckett v. R. C. 

McKee et aL 

County Judge. Salary. A county judge is an inferior judge within the 
meaning of the Constitution so far as he is clothed with judicial 
power, and his salary can neither be increased nor diminished during 
the time for which he is elected, but he is also the accounting officer 
and general iigent of the county, and compensation may be mad^ 
him therefor under the authority vested in the quarterly court by 
statute, and their judgment when exercised cannot be controlled hy 
anv other tribunal. 



FROM HAMILTON. 



Appeal in error from the Circuit Court of Hamil- 
ton county. R. M. Barton, Sp. J. 

Key & Richmond and Dodson & Moon for Puckett. 

M. H. Cltft for KcKee. 

Cooper, J., delivered the opinion of the court. 

The relator Puckett was county judge of Hamilton 
county from September, 1870, to September, 1878, 
He was elected, commissioned and qualified as other 
judges: Rev. Code, sec. 316c. The office was clothed 
with all the judicial powers of the county court, and 
the incumbent was also made the accounting officer 
and general agent of the county: /d., sub-sec. 8. 
By the 9th sub-section of the Revised Code, sec. 316 c, 
it is provided that the county judge shall receive the 



SEPTEMBER TERM, 1881. 26 



The State v. McKee. 



sum of five hundred dollars per annum for his ser- 
vices, and that the quarterly court of the county is 
''authorized to make additional compensation to the 
J county judge, if they shall think it necessary, by ap- 
propriation for that purpose, to such an amount as 
said quarterly court may deem right," the compensa- 
tion to be paid quarterly out of the county treasury 
upon his own warrant. At its April term, 1871, the 
quarterly court made the following order: "Ordered, 
that, in addition to the sum fixed by law as a salary 
for A. G. W. Puckett, judge, &c., the further sum 
of five hundred dollars be allowed the judge for his 
services as county judge, &c." At the April term 
of the quarterly court for each of the five following 
years, an order was made allowing the judge the ad- 
ditional sum of $500 for his services. For the next 
two years the court, upon a motion made for the 
purpose, refused to make any additional allowance. 
After the expiration of his term of office, Puckett 
filed his petition against his successor in office and 
the justices of the county court for a peremptory 
mandamuSf first to compel the present county judge 
to issue to him a warrant for $500 for each of the 
last two years of the relator's term of office upon the 
ground that this sum had been fixed as the additional 
allowance, authorized by the statute, during his whole 
term by the order of the April term, 1871; and, 
secondly, if mistaken in this, to compel the quarterly 
court now to make him the allowance to which he 
may show himself entitled. On the trial, he intro- 
duced testimony to show that his services were rea- 



26 KNOXVILLE: 



The State v. McKee. 



sonably worth an additional allowance of $500 per 
annum for the last two years of his term. The case 
was tried by the judge without a jury, and the peti- 
tion <lismissed. The relator appealed. 

It has not been seriously argued that the petition 
can be maintained so far as it seeks to compel the- 
justices of the county court now to make the addi- 
tional allowance claimed. The statute gives the quar- 
terly court authority to make additional compensation 
to the county judge '* if they shall think it necessary," 
and to such an amount as the court **may deem right." 
Terras more strongly indicative of an intent to confer 
a di-cretionary power it would be difficult to find. 
Of course, in all matters requiring the exercise of 
official judgment, or resting in the sound discretion of 
those to whom a duty is confided, a mandamus will 
not lie either to control the exercise of that discre- 
tion, or to determine on the decision which shall be 
given. All the court can do in a proper case is to 
compel the defendant to proceed, when he refuses to 
act at all : WilUamH v. Saundern, 5 Cold., 60. In 
the case before us, the petition does not sl^ow that 
there is pending before the quarterly court any appli- 
cation for the additional allowance upon which they 
refuse to act, but concedes, as the proof shows, that 
the motion to make the allowance was acted on and 
refused for each of the two years claimed. The court 
has exercised its discretionary authority adversely to 
the relator's claim. 

The j)etition rests, therefore, upon that part of it 
which seeks to compel the present county judge to 



S 



SEPTEMBER TERM, 1881 27 

- — 

The State v, McKee. 

issue his warrant for the sum claimed, upon the ground 
that it has already been fixed by the quarterly court, 
and that the duty of the defendant is merely ministe- 
rial. The theory upon which this branch of the peti- 
tion rests, is that the quarterly court by its order of 
the April term, 1871, exhausted its discretionary power, 
and in effect settled upon the sum of $500 as an ad- 
ditional allowance for each of the succeeding years of 
the relator^s term of office. The argument in support 
of this view is that the Constitution of the State, art. 
6, sec. 7, provides that the judges of the inferior courts 
shall, at stated times, receive a compensation for their 
services, to be ascertained by law, which shall not be 
increased or diminished during the time for which they 
are elected ; that the relator was an inferior judge 
within the meaning of the Constitution ; that the ad- 
ditional allowance when once fixed related back to the 
commencement of the term of office, and could not be 
thenceforward increased or diminished during the term. 
But the frail link in this chain of reasoning is that 
the additional allowance claimed was itself made during 
the term of office, and would, therefore, be void un- 
der the provision of the Constitution in question. This 
result can hardly be avoided by the fiction of rela- 
tion, which, if adopted, would equally apply to any 
other increase or diminution during the time for which 
a judge is elected, and thereby annul the provision 
of the Constitution itself. Besides, the order does 
not say that the allowance shall be for each year of 
the term, but is for a given sum "for his (relator's) 
services as county judge," and would rather mean, if 



28 KNOXVILLE: 



The State v. McKee. 



it is to be construed as applying to his term of office 
at all, that it was made for his entire services. 

The county judge is, no doubt, an inferior judge 
within the meaning of the Constitution so far as he 
is clothed with judicial power, and his salary in that 
capacity is fixed by the act under which he .was elect- 
ed, and can neither be increased nor diminished during 
the time for which he is elected : State v. Glenn, 7 
Heis., 472. But he is also, by the express terms of 
the act creating the office, the "accounting officer and 
general agent of the county," with onerous ministerial 
and clerical duties thereto attached. The additional 
compensation, which the quarterly court is authorized 
to make, is for these services. The amount of that 
compensation is left entirely to the discretion of the 
quarterly court, and their judgment, when exercised, 
cannot be controlled by any other tribunal. 

Affirm the judgment. 



SEPTEMBER TERM, 1881. 29 



Lynn v. Tellico Manufacturing Co. 



JuBY AND Nancy Lynn v. Tellico Manufact'g Co. 

Pleadings and Practice. Forcible entry and detainer. Appeal. Pduper 
oath. The defendant in an action of forcible entry and detainer be- 
fore a justice of the peace may appeal from the judgment against 
him, awarding to the plaintiff a writ of possession, by taking the 
oath prescribed for poor persons, although the writ of possession be 
not executed at the time by the voluntary forbearance of the plaintiff. 



FROM MONROE. 



Appeal in error from the Circuit Court of Monroe 
county. S. A. Rogers, J. 

Robert Pritcharb for Lynn. 

T. E. McCroskey for Company. 

Cooper, J., delivered the opinion of the court. 

The Tellico Manufacturing Company brought an 
action of forcible and unlawful entry and detainer 
against Judy and Nancy Lynn, before a justice of the 
peace. The justice rendered judgment in favor of the 
company, and awarded a writ of possession. The 
Lynns prayed an appeal to the circuit court, which 
was granted "on the requirement law,'' and they took 
the oath prescribed for poor persons. The company, 
tliereapon, executed a bond with good security, as re- 
quired by the Rev. Statutes, sec. 3373 a, in double 
the value of one year's rent of the land, conditioned 



8L 89 
13L 08 



30 KNOXVILLE : 



Lynn v. Tellico Manufacturing Co. 



to pay all cOvSts and damages which might accrue from 
wrongfully enforcing* the writ of possession, and to 
abide by and perform the judgment of the appellate 
court on final hearing. In the circuit court the com- 
pany moved to dismiss the appeal because taken un- 
der the pauper oath, and the motion was sustained. 
The Lynns then . applied to the court to be allowed 
to give bond for the rent of the land for one year, 
but not for the costs of appeal, and to be permitted 
to prosecute the appeal under the pauper oath, but 
the application was refused. They have brought the 
case into this court by writ of error. The record 
does not show that the writ of possession was exe- 
cuted up to the time of the dismissal of the appeal 
in the circuit court. 

Under the statutes previous to the Code, and 
brought into that compilation in sees. 3360 to 3362 
inclusive, it was held that a defendant against whom 
judgment had been rendered in an action of forcible 
entry and detainer, could not take the case into the 
circuit court under the pauper oath: Norton v. White-' 
sidesy 5 Hum., 381. By the "Code, the bond required 
for an appeal or certiorari to take the case into the 
circuit court was to be in double the value of one 
year's rent of the premises, conditioned to pay costs 
and damages. Afterwards, the act of 1870, ch. 64, 
was passed ^Rev. Stat., sec. 3373 a ei seq.), which pro- 
vided that whenever the judgment of the justice wa« 
in favor of the plain tiflF, and a writ of possession 
awarded, the writ should be executed, ^^and the plain- 
tiff immediately restored to the possession," with a 



SEPTEMBER TERM, 1881. 31 

Lynn v. Tellico Manufacturing Co. 

proviso that if the defendant appealed from the judg- 
ment the plain tiflF should execute bond, with security, 
in double the value of one year's rent, conditioned to 
pay costs and damages, and perform the judgment of 
the appellate court. In Burns v. Haggard^ 11 Heis., 
122, it was held that if the writ of possession in 
such a case was executed, the defendant might appeal 
in forma pauperis, the act of 1870 having modified 
the previous law so as to substitute the possession of 
the land in place of the bond previously required from 
the defendant when he remained in possession. The 
question in the case before us is whether the previous 
law is so modified when the plaintiff is entitled to 
the immediate possession of the land by the execution 
of the writ of possession, but fails to execute it. And 
we think it is, because the prosecution of the appeal 
will not affect the right of the plaintiff to the pos- 
session of the land. If the defendant executed an 
appeal bond, it would only be for costs, and the 
pau|x;r's oath may always be taken in lieu of such a 
bond. 

Reverse and remand. 



32 KNOXVILLE : 



Butler V. Bailroad Co. 



F. C. Butler v. East Tenn. & Va. Railroad Co, 

Bailkoad. Common carrier. When liubUiiy ceases. The duty of a rail- 
road company is to carry freight to the place directed, and to deliver 
it to the parly entitled if there ready to receive it, and if not, to store 
it for hira. The liability of the company as a common carrier eeaees 
when the freight is deposited in a warehouse, and is not extended by 
the act of 1870, ch. 17 (Code, sec. 1993J), requiring the company to 
give a prescribed notice to the consignee. 



FROM MONROE. 



Appeal in error from the Circuit Court of Monroe 
county. S. A. Eodc4Ers, J. 

McCroskby & Hicks for Butler. 
George Brown for Railroad Company. . 
Cooper, J., delivered the opinion of the court. 

Action brought by Butler against the railroad com- 
pany for the value of a trunk and its contents. The 
case was tried by the judge, without a jury, who ren- 
dered judgment in favor of the company, and the 
plaintiff appealed. 

On January 1, 1878, the plaintiff at Mossy Creek, 
directed the defendant to ship the trunk on its train 
to Philadelphia, Tennessee. The plaintiff, after he 
had ordered the shipment, walked from Mossy Creek 
to Philadelphia, or its vicinity, about seventy miles, 



SEPTEMBER TERM, 1881. 33 

Butler V. Railroad Co. 

and arrived on the 9th of January. The truDk was 
destroyed by fire in the burning of the depot of the 
company at Philadelphia on the night of the 12th of 
January^ having reached that point .about ten days 
before and been stored in the depot. The phiintiff 
aays he went to Philadelphia on January l.*5th, *^to 
see if my trunk was burned.'^ He adds that he has 
no family, is a millwright, travels about to get work, 
and has no fixed home. The agent of the company 
did not notify the plaintiff of the arrival of the trunk, 
becaufe he did not know his post-office or where he 
lived. The fire occurred without any fault of the 
company. 

The duty of the railroad company was to C8rry 
the plaintiff's trunk to the place directed, and to de- 
liver it to the plaintiff if he was ready to receive it, 
and if not, to store it for him in their station ware- 
house: Dean v. Vaccaro, 2 Head, 490. The liability 
of the company as a common carrier ceased when the 
trunk was deposited in the warehouse. The subse- 
quent loss by fire without any fault on the part of 
the company would fall upon the owner of the goods: 
Express Company v. Katifmany 12 Heis., 161; Rankin 
V. Memphis Packet Co., 9 Heis., 564, 570. 

It is suggested, rather than argued, that the com- 
mon law liability of the railroad company, as a com- 
mon carrier, has been extended by the act of 1870, 
ch. 17 (Rev. Stat., sec. 1993^). The first section of 
that act makes it the duty of all common carriers 
and express companies doing business in this State, 

after the receipt of freight for delivery at their ware- 
3 — VOL. 8. 



34 KNOXVILLE : 



Butler r. Bailroad Co. 



house^ depot or station, to notify the consignee, by 
written or printed notice, to be delivered to the con- 
signee in person, at his place of business, if in the 
city or town where received ; or if not residing or 
doing business in the city or town, then through the 
post-office, within three days after the arrival of goods, 
It was the duty of the carrier to notify the consignee 
of the arrival of freight before the statute, though 
not necessarily in the mode prescribed : Dean v. VaC" 
caroy 2 Head, 490. The designation of a particular 
form and manner of notice would not, by any fair 
intendment, change the character of the carrier's lia- 
bility. And the severity of the common law rule 
forbids its extension by the courts in the absence of 
positive legislation. And the company was certainly 
in no fault for failing to give the plaintiflF notice in 
this case. He had no fixed residence, nor the com- 
pany any knowledge of his temporary stopping place. 
Affirm the judgment. 



SEPTEMBER TERM, 1881. 35 



Leach v. The State. 



Russell Leach v. The State. 

J>iJ?TRiCT Attorney. Fees. Where a party tried and convicted of rape, 
appeals to supreme court, and pending the appeal hreaks jail and 
escapes, after return of capias and retirement of case, under sec. 4542 
of Code, attorney general is only entitled by act of 1874, amending 
sec. 4542, to a fee as on nolle prosequi^ or acquittal. The conviction 
was not a final conviction. 



MOTION. 



Fkeeman, J., delivered the opinion of the court. 

The question in this case is, what shall be the fee 
to be taxed in favor of the district attorney. The 
court below allowed the sum of twenty dollars, as ob 
a conviction for ^rape. 

The party had been convicted, and appealed to this 
court from the judgment, but pending his appeal he 
broke jail and escaped; a capias was issued, properly 
returned, and the case ordered to be retired from the 
docket, as provided by our statute. 

By the act of 1879, p. 117, sec. 4542 of the Code 
wa^ so amended as that the fees of district attorneys 
for each conviction shall read, " for each final convic- 
tion, and hereafter said fees shall not be allowed when 
a new trial is granted, by either the court below or 
the supredle court." 

This case is not within the letter, but is within 
the spirit of this enactment. There was no final con- 



46 KNOXVILLE : 



Leach u. The State. 



viction in the sense of the law. The appeal vacated 
or suspended the judgment till the action of the court 
should be had on it; and so it stands as a case still 
pending against the defendant, and may be prosecuted 
against him whenever he may be arrested. 

The fee to be allowed is the one provided by the 
section of the Code directing the retirement of cases, 
liiat is, the fee allowed in cases of nolle prosequi or 
acquittal. The fee of twenty dollars will be stricken 
out. 



Fbancis D, Rice v. Hugh L. McReynolds and Frank 

B. McElwee et oJ. 

1. Husband and Wife. Chosee in action ofvnfe. A husband is entitled 

to receive and reduce to possession during coverture all chosea in action, 
whether in the form of notes, debts or legacies, belonging to the wife 
at the time of her marriage, or accruing to her afterwards. 

2. Same. Same. If the husband fail to reduce them to possession during 

the coverture, and survive the wife, then his administrator is entitled 
to them and may sue for and recover the same ; but if the wife sur- 
vive her husband, then she is entitled to all such choses in action bh 
have not been actually reduced to possession by the husband. 

3. Same. Same. Beduction to posseasion by husband. A wife was entitled 

to a legacy and was owner of bank stock, the husband • received tha 
legacy, receipting for it in his wife's name, and the bank stock was 
transferred to him by her ; heldj he had reduced them to possession, 
and she surviving him, was not entitled to recover. Sec. 2488 of th e 



SEPTEMBER TERM, 1881. 37 

Rice V. McBeynolds. 

Code refers to receipt of funds in court, and not to receipt of a legacy 
in the hands of an executor, where the money is not brought under 
the control of the court. 



FROM BRADLEY. 



Appeal from the Chancery Court at Cleveland. W,' 
M. Bradford, Ch. 

J. H. Gaut for complainant. 

A. Blizzard for defendants. 

Freeman, J., delivered the opinion of the court. 

The only questions presented in this ease are, 
whether the complainant is entitled to recover the 
amount of the legacy of his wife from her father^s 
estate, received by him during their coverture, and 
also the Jf2,000 of bank stock in the Cleveland bank. 

The chancellor decreed that she was not entitled 
to recover the legacy, but was entitled to the bank 
stock, and dividends accrued on the same after the 
death of her husband. 

We take it to be too clear for argument, or need 
of authority, that a husband is entitled to receive and 
reduce to possession during coverture all choses in ac- 
tion, whether in the form of notes, debts or legacies, 
belonging to the wife at the time of their marriage, 
or accruing to her afterwards. As to what has been 
held choses in action for this purpose, see Wait's Ac- 
tion and Def., vol. 3, p. 639. 



38 KNOXVILLE: 



Rice V. McR^vnolds. 



If he fail to reduce them to possession during the 
•overture, and survive the wife, then his administra- 
tor or personal representative is entitled to them, and 
may sue for and recover the same Tune v. Cooper, 
4 Sneed, 299. Should the wife survive her husband,^ 
then she is entitled to all such choses in action as 
have not been actually reduced to possession by the 
husband. This is elementary law, and admits of no 
doubt as being the law of our State. 

The only question then is, were the choses in con- 
troversy reduced to possession by the husband during 
the coverture. It is beyond all question the legacy 
was received by him and appropriated to his own use. 
He was the executor (or one of them) of the estate 
of his wife's father, and as such, receipted for the 
amount due his wife, in her name, obtained possession 
of the money, and used and appropriated it as his 
own. It is very satisfactorily shown (if this were 
necessary), that this was done with the assent of the 
wife. It was done years before his death, and it 
clearly appears that she had not thought of making 
any claim for this fund till some time after the death 
of the husband. In fact the bill goes on the theory 
that he did receive and use this money received from 
the legacy, but that this was not authorized legally by 
the wife, because not received by virtue of any power 
of attorney from her, or legal authority from her. 

The contention is based on an entire misapprehen- 
•ion of our statutes on the subject. They have no 
application to such a case whatever. Sec. 2483 of the 
Code, it is true, provides for paying out proceeds of 



SEPTEMBER TERM, 1881. 39 



Rice t". McReynolds. 

real or personal property upon privy examination by 
the court or a commissioner, or under a power of at- 
torney by husband and wife, with privy examination 
as in other cases. But this only has reference to 
proceeds of her property when sold by order or decree 
of a court, or when in court, and not to the receipt 
of a legacy in the hands of an executor, where the 
money is not brought under the control of a court at 
all. . See these provisions more fully embodied in sees. 
3319-20, under the title Partition. We need not re- 
fer to other sections of the Code urged in argument, 
as they clearly have no bearing on the question be- 
fore us. 

It follows necessarily from the principle that the 
husband has the right to reduce to possession, and 
appropriate when so reduced, the choses in action 
of the wife, that he may sue for them, or may assign 
or transfer them as he chooses, subject, however, to 
the right of survivorship, in a case like this, in the 
hands of the assignee, until such assignee has reduced 
the chose into possession himself: See 8d vol. Wait's 
Act. and Def., p. 641. We need but say, the chan- 
cellor's decree was correct as to the legacy. 

As to the bank stock, it being a chose of peculiar 
nature, the reduction to possession is effectual, not by 
the collection of the money paid for the stock, or 
which it represents, but by transferring the stock in 
his own name, with the purpose of making it his own, 
or, more accurately, such transfer works the result, 
unless it be clearly shown that it was done in trust 
for his wife, or another, or for some other pur- 



40 KNOXVILLE: 



Rice t'. McRevnolda. 



pose than to vest the title in himself: Wait, vol. 3, 
645. 

It is earnestly argued that this transfer was made 
only in trust for the wife, and was not, and indeed 
could not have been made by the wife, so as to de- 
feat her rights. We take it to be too clear for ar- 
gument, that the husband having the right, by virtue 
of his marriage, to reduce the chose to possession, had 
also the right to use the necessary means of effectiog 
that right, and this with or without the consent of 
the wife. The fact that she assented by signing the 
transfer, being accepted by him, could not render the 
act less effectual. 

The testimony in this case shows clearly that the 
ass gnment was made to the husband, in writing on 
the stock books of the bank at the request of the 
wife, in the absence of the husband, and no contract 
to hold in trust, or act as the agent of the wife is 
shown. 'A parol trust in this case, the assignment 
being in writing and abs^olute on its face, would have 
(to say the least of it) to be made out by the clearest 
and most satisfactory evidence. 

Tlie contention of complainant, that it was done in 
trust for the wife, is prima facie rebutted by the fact 
that the assignment was made under her direction, and . 
such purpose is not stated in the writing. If such 
purpose had existed, the most natural thing in the 
world was to have so said in the written assignment, 
and thus have cut off all future doubt or diflBculty in 
establishing the trust. 

We need only say in addition, that the weight of 



SEPTEMBER TERM, 1881. 41 

Rice V. McKeynolda. 

the proof leaves no doubt that the trust now sought 
to be established is an after thought, and suggested 
as the result of irritations growing- up after the death 
of the husband, between the widow and parties inter- 
ested in her husband's estate. It appears very satis- 
factorily, that the wife, in the life-time of her husband, 
held the theory that there should be no separate or 
antagonistic interests in property, as , between herself 
and husband. They mutually acted on this principle, 
one, in the larger number of cases, the soundest and 
most conducive to the happiness of that relation. It 
is too late now to assert the contrary, after the law 
has fixed the rights of parties, and the husband has 
died. 

The result is, the chancellor's decree is affirmed as 
to the legacy, and reversed as to the bank stock, and 
the bill dismissed with costs. 



42 KNOXVILLE: 



IlawkinH, Butt, Smith & Co. v. Lee. 
I 



Hawkins, Butt, Smith & Co. v. Jno. A. Lee, Sr. 

1. Partners. Admmiom. A partner can bind other partners by his ad- 

missions only during his connection with the firm. He binds him- 
self by admissions made at any time. 

2. Ck)NTRACT. Evideitee. Where parties do not intend that the written 

contract should contain the whole of their intentions, evidence of an 
independent verbal agreement not contradicting the writing is ad- 
missible. 



FROM HAMILTON. 



Appeal in error from the Circuit Court of Ham- 
ilton county. D. C. Trewhitt, J. 

Key & Richmond for Hawkins, Butt, Smith & Co. 

Van Dyke, Cook & VanDyke for Lee. 

Freeman, J., delivered the opinion of the court. 

Lee sued plaintifiFs in error before a justice of the 
peace of Hamilton county for breach of a contract of 
employment, by which the said parties agreed to em- 
ploy Lee from the 3d day of March, 1879, for one 
year, at three dollars per day, as a tinner. He avers 
that on the 16th of July, 1879, the firm wrongfully 
and without sufficient cause discharged him, and re- 
fused to give him employment or pay him wages, to 
his damage, etc. The case was taken by appeal to 
the circuit court, where it was tried and judgment 
had for plaintiff, and appeal in error to this court. 



SEPTEMBER TERM, 1881. 43 

Hawkins, Butt, Smith & Co. v. Lee. 

Several errors are assigned in argument. On the 
trial of the case a statement made by Hawkins, who 
was one of the firm of Hawkins, Butt, Smith & Co. 
when the contract was made, but who had retired 
from the firm before the suit was brought, was oflFered 
in evidence by plaintiff, and objected to by defend- 
ants' counsel. This statement contained a full history 
of the contract made between the firm and plaintiff, 
together with other facts bearing on the liability of 
defendants. It was taken in the form of a deposi- 
tion, questions being put by the plaintiff's counsel, 
and was in fact intended to be such, the parties hav- 
ing agreed to take the deposition by consent, but de- 
fendants' counsel being unable to attend to it, the 
deposition was* abandoned, never completed, but was 
sworn to by Hawkins, kept in possession of plaintiff's 
counsel, not filed, but introduced on the trial as evi- 
dence. It was objected to by defendant's counsel, but 
the court allowed it to be read as admissions of H. 
C. Hawkins, and evidence against him, but instructed 
the jury that the statement was not evidence against 
the other defendants. Hawkins was su<^d in this ac- 
tion, all the members of the original firm being named 
in the writ, .but sued as "partners under the firm 
name of Hawkins, Butt, Smith & Co." 

We think this paper was competent testimony as 
against Hawkins, and for this purpose alone it was 
admitted to go to the jury by the court. 

All contracts are made joint and sevei^al by our 
statute (Code, sec. 2789), and a failure to recover as 
to one, shall not prevent a recovery against those de- 



44 KNOXVILLE: 



Hawkins, Butt, Smith & Co. v. Lee. 



fendants who may be liable. Hawkins might have 
confessed judgment as against himself^ and if so, he 
might make admissions which would produce the same 
Tesult. The court correctly told the jury such ad- 
missions could not affect the other parties. 

The contract, for the breach of which this suit is 
brought, was in writing, as shown by the language 
of the warrant. It was that defendants were to give 
plaintiff employment for twelve months, at three dol- 
lars per clay; and the breach alleged is, that he was 
wrongfully discharged on the 16th of July. 

It is not seriously questioned but that plaintiff was 
discharged. The only question is, whether he was 
rightly discharged. 

On the part of plaintiff, it was shown that at the 
time of making the contract he was working in his 
own shop, corner of Eighth and Cherry streets, in 
Chattanooga, and immediately after the written con- 
tract was signed, and on the same occasion, it was 
further agreed that plaintiff was to work in his own 
shop, where he then was, and his tools were not to 
be moved therefrom, and he was to have nothing to 
do with Mr. Smith (a member of the firm) or the 
shop of the firm on Market street. It was fnrther 
agreed that the defendants were to take his three 
years' lease of the shop off his hands, and insure his 
tools then in the shop. Plaintiff and Smith were 
unfriendly. In July, after Hawkins had retired from 
the firm. Smith proposed to move plaintiff and his 
tools to the shop on Market street, and discontinue 
the work at the other shop, where the plaintiff had 



SEPTEMBER TERM, 1881. 45 



Hawkins, Butt^ Smith & Co. v. Lee. 



worked for the firm from March till then. Lee re- 
fased to have his tools moved, and on this refusal 
was discharged. He continued to tender his services, 
however, until it was shown they would not .receive 
them. 

It ifl objected that this verbal contract is not ad- 
missible, because variant from or adding to the writ- 
ten contract. 

We do not think this contention sound. It has 
been often held by this court that in cases not re- 
quired to be in writing by the statute of frauds, ad- 
ditional terms may be established by parol testimony, 
and shall not be excluded by the existence of a writ- 
ten agreement, as, where the additional terms amount 
to a substantial collateral agreement. The case cited in 
Leinau v. Smart, 11 Hum., 809 (Cooper's ed.), where 
a horse was hired for six weeks at two guineas, parol 
testimony was permitted to prove that at the time of 
the hiring it was expressly agreed that, as the horse 
was given to shying, the hirer, if he took him, should 
be liable to all accidents, and this 'on the principle 
that the writing was confined to one part only of the 
transaction. See, also, Cobb v. O^Neal, 2 Sneed, 442; 
JBissinger v. (ruiteman, 6 Heis., 282. 

We think the testimony shows that this agreement, 
80 far as the place where the plaintiff was to work, 
was understood by the other members of the firm. 
Its other stipulations as to the lease and insurance, 
we think were also known, as the lease was taken by 
the firm and the tools insured. We think there was 
no error in admitting this testimony, and upon it the 



46 KNOX VILLE : 



HawkinSj Butt, Smith & Co. v. Lee, 



jury were warranted in finding the contract broken 
by a demand in violation of what had been agreed 
on by the parties. In this view of the case, we 
need not discuss or decide upon the validity of an 
agreement made by one partner in such a case that 
an employee should not have anything to do with 
another member of the firm. Conceding that such 
a term of the contract might not be binding, it is 
clear in this case the other stipulations were reason- 
able and binding, and the breach of theee alone were 
the cause of diflFerence between the parties. For in- 
sisting on the terms of the contract — that he was t« 
remain in the shop on Eighth street and his tools, 
agreed to be furnished, were not to be moved — the 
plaintiff was discharged. This was a legal wrong 
done him, and he was entitled to be compensated in 
damages such as a jury deemed he had sustained. 

The question of the right to sue before the end 
of the time for which the contract was made, and the 
measure of damages, we need not discuss in this opin- 
ion. The law »in such a case has been determined 
in favor of plaintiff at this term in the case of East 
Tenn., Va, & Ga, R, R. Co, v. Staub, in an opinion 
by McFarland, J., to which we refer for the rule as 
well as the reasons on which it rests. 

On the whole case we see no error, and affirm 
the judgment. 



SEPTEMBER. TERM, 1881. 47 



Mynatt v. The State. 



Natt Mynatt v. Thk State. 

CBiMiNAii Law. Lmodne^. Evidence, Testimony showing acts of lewd- 
ness proven on a trial on a former indictment, on which party wag 
acquitted, is admissible to show the nature and character of subse- 
quent conduct and association between the same parties. 



FROM UNION. 



Appeal in error from the County Court of Union 
county. D. K. Young, J. 

for Mynatt. 



Attorney-General Lea for the State. 
Freeman, J., delivered the opinion of the court. 

On the trial of this case for open and notorious 
lewdness, the defendant was convicted, and has ap- 
pealed in error to this court. 

It appears the parties had been previously indicted 
for this offense, and the defendant tried and acquitted. 
Two witnesses were allowed by -the court in the pres- 
ent case to prove an act of illicit intercourse previoug 
to the former indictment, and which they had testi- 
fied to on that trial, the court telling the jury that 
these facts were only to be looked to by way of 
throwing light on subsequent conduct of defendant and 
acts before the finding of the present indictment. 

We think in this the court did not err. It has 



48 KNOXVILLE : 



Mjnatt V. The State. 



been held in such cases that acts subsequent to the 
finding of the indictment may be proven, tending to 
show indecent familiarity between the parties, in ex- 
planation of another act with which the party stood 
charged: Cole v. The StcUey 6 Baxt., 243. If this be 
correct, we can see no difference in principle between 
proving previous acts for the same purpose, as in this 
case. The offense of open and notorious lewdness 
must of necessity consist of a series of acts of asso- 
ciation, whichj taken together, make out the offense; 
and whether these acts were lewd or innocent, is the 
question for the jury. The fact of repeated carnal 
intercourse, in connection with frequent association, 
-would tend to make out the character of that associa- 
tion, and show it to have been of an immoral char- 
acter rather than the opposite. The proof, we think, 
was competent. Affirm the judgment. 



OA-SES -« 



ARGUED AND DETERMINED 



IN THE 



SUPREME COURT OF TENNESSEB, 



FOB THE 



MIDDLE DIVISION. 



NASHVILLE, DECEMBER TERM, 1881. 



Susan White and Emma C. White v. W. H. Blake- 

MOBE et cU. 

1. Vendor's Lien. Administrafor. Statute of limiiaiions. Although the 

estate of a deceased debtor may be protected by the statute of limita- 
tions of three and seven years from the recovery of judgment against 
the personal representative on particular debts created by the pur- 
chase of land by the debtor^ yet the lien retained on the land by the 
reservation of the title, would not be impaired thereby, and may be 
enforced against the heirs. It would be otherwise in the case of a 
mere equity growing out of the existence of a debt, not secured by 
contract lien. 

2. Vendor and Vendee. Mortgagor and mortgagee. Lien of vendor. Ad- 

verse possession. The relation of a purchaser of land by title bond to 
his vendor is similar to that of mortgagor and mortgagee, and his 
possession is not adverse to the lien of the vendor until it is made so 
by notice of a hostile holding ; nor is the possession of his privy in 
blood or estate, the condition of the title being notice of the outstand- 
ing equity. 

3. Same. IHtk bond. Notes for -purchase rrumey. Where the notes men- 

tioned in a title bond as given for the purchase of land are not de- 
scribed, and the notes actuallv executed embrace other considera- 
tions, the reservation of title will enure to the security of the pur- 
chase monev in the notes. 

4 — VOL. 8. 



101639 



"50 NASHVILLE : 



White V. Blakemore. 



4. Same. Evidence, If the vendor of land may show by parol proof that 
certain notes calling for a larger sum of money than that mentioned 
in the title bond were given for the land, or were to be secured by the 
reservation of the title to the land, the burden of proof would be on 
him, and, after the lapse of over forty years, the proof should be clear 
and conclusive. 

6. Payments. How applied. Where the debtor directed payments made 
by him to be applied on certain notes, given in part consideration for 
land sold by bond for title, and in part for other considerations, and 
the debtor at the time applied the payments accordingly, equity 
will apportion the payments pro rata between the two consider ations« 

6. Tenants in Common. Sale of respective shares by title bond. When ten- 
ants in common of land sell their several shares at a given price for 
each share, separate notes being executed to each tenant for the pur- 
chase money of his share, each tenant can only subject his share of 
the land to the satisfaction of the purchase money due him, although 
all the tenants may join in executing one title bond. 



FROM BEDFORD, 



Appeal from the Chancery Court at Shelbyville. 
John W, Burton, Ch. 

Cooper & Frierson for complainants. 

W. 8. Bearden and Tnos. S. Myerh for defendant. 
Cooper, J., delivered the opinion of the court. 

Bill filed April 15, 1879, to enforce a lien for 
unpaid purchase money on land sold, by bond for title, 
on November 19, 1836, to Daniel L. Barringer, the 
grandfather of the defendants. The chancellor dis- 
missed the bill, and complainants appealed. 

Many years ago, in the year 1811, Wm. White, 
spoken of in some of the papers as late secretary of 
State of North Carolina, died leaving a widow Anna 



DECEMBER TERM, 1881. 51 

White V. Blakemore. 

White, and six daughters Emma White, Susan White, 
Sophronia White, Eleanor who intermarried with David 
li. Swain, Elizabeth who intermarried with one Felton, 
and Ann who intermarried with Daniel L. Barringer. 
The deceased owned lands in Tennessee, and probably 
made a will devising his property equally to his widow 
and children. At any rate, all the conveyances in 
the record take for granted the equal interest of these 
parties, and the land in controversy was, after the 
death of Wm. White, conveyed to the widow and 
children by the heirs of Robert White. The family 
lived in Raleigb, N. C, and we learn from the depo- 
sitions of the complainants, taken in this cause, that 
they continued to live in the house in which they 
were born. Barringer and wife, after their intermar- 
riage, moved to Bedford county, Tennessee. 

In November, 1836, several instruments of convey- 
ance or sale were executed between these parties. One 
of them seems to have been dated on the 18th, and 
the residue on the 19th of that mouth, but they are 
manifestly all parts of one transaction. The instru- 
ment of the 18th of November, is a formal deed by 
which Daniel L. Barringer and his wife Ann convey 
to Anna White, the widow, and to Elizabeth Felton, 
Susan White, Emma White, Sophronia White, and Da- 
vid L. Swain and wife Eleanor, the interest of Bar*- 
rirger and wife, described as one undivided seventh, 
in the land in controversy in fee. The consideration 
expressed is $400 paid. The land is set out by metes 
and bounds, lying on Sugar creek in Bedford county, 
Tennessee, and described as containing seven hundred 



52 NASHVILLE : 



White V. Blakemore. 



acres, ^^more or less, it being the residue of a tract 
of land of one thousand acres granted by Ihe State of 
Tennessee to Robert White by grant No. 618, and 
conveyed by the heirs of Robert White to the widow 
and children of Wnf. White, deceased, and of which 
Daniel L. Barringer and wife are entitled to one- 
seventh/' 

On November 19, 1836, Anna White, Elizabeth 
Felton, Susan White, Emma White, Sophronia White 
and David L. SWain join in a bond for title to Daniel 
L. Barringer, in the penalty of $5,600, conditioned 
that each of the obligors in their own right, and Swain 
in the right- of his wife also, would, upon the pay- 
ment by the said Barringer of his bonds given as 
consideration for the land, execute, or cause to be ex- 
ecuted to him a good and sufficient deed in fee simple, 
with covenants of warranty, to the same tract of land 
of seven hundred acres, describing it by metes and 
bounds. The title bond, as it is copied into the re- 
cord, is defective in the recital of the consideration, 
probably by a clerical error of the copier of the tran- 
script, as the written arguments of both parties agree 
in relation to its purport. Supplying the missing 
words in brackets, the clause will read thus: "And 
for consideration for the same, [the said Daniel L. 
Barringer has executed to] the said Anna White, JJliz- 
beth Felton, Susan White, Emma White, Sophronia 
White and David L. Swain his several bonds under 
seal, and bearing date herewith, in the sum of $2,800, 
said bonds falling due at different times as specified 
upon their faoe/^ 



DECEMBER TERM, 1881. 63 

White V, Blakemore. 

On the same day^ David L. Swain and Eleanor 
bis wife conveyed to Daniel L. Barringer, "in consid- 
eration of five hundred and dollars*^ paid, all 

their interest^ being an undivided seventh in right of 
!Eleanor "as heir or devisee of Wm. White," in and 
to several tracts of land in Tennessee, described by 
metes and bounds. 

On the same day, Anna White, Elizabeth Felton, 
Susan White, Emma White and Sophronia White join 
in a conveyance of their interest in the same lands, 
''as heirs and devisees of Wm. White," to Daniel L. 
Barringer in fee, reciting a consideration of (2,750 paid. 

The sum of these several instruments is that Bar- 
ringer and wife convey their one-seventh of the land 
in controversy to the widow and other children of 
Wm. White for (400, and these latter immediately 
covenant, by title bond, to convey the whole tract to 
Barringer upon the payment of his bonds for the pur- 
chase money, recited as $2,800. At the same time, 
the same parties sell to Barringer their interest in the 
other lands of Wm. Whitens estate in Tennessee, at 
the price of $3,300. 

The bill is filed to subject the land mentioned in 
the title bond to the satisfaction of the bonds of Bar- 
ringer executed to the complainants and their sister 
Sophronia for the purchase money of their shares. 
The complainants did not have the title bond before 
them, which at the time was supposed to have been 
lost, but they allege that their covenant to convey was 
by bond for title or agreement in writing. They say 
that Barringer executed to each of the five bargainors 



54 NASHVILLE : 



White V. Blakemore. 



his three several notes under seal for $300 each, all 
dated November 19, 1836, and made payable January 
1, 1839, January 1, 1840, and January 1, 1841, re- 
spectively, with interest from date "to be paid annually/' 
They state that all of these notes have been paid by 
Barringer or his personal representative, except the 
notes executed to them and to their sister Sophronia; 
that on these latter notes numerous payments have 
been made from time to time, and credited on the 
back thereof, the last payment having been made, 
December 24, 1862, by J. A. Blakemore, administra- 
tor of Barringer, and also the husband of Barringer's 
only daughter. They aver, and afterwards proved, 
that their sister Sophronia intermarried, June 6, 1857, 
with John Walker; that Walker died September 7, 
1876, and Sophronia on December 9 of the same year, 
both intestate and childless; and that upon her death 
Sophronia delivered her notes to complainants as a 
gift. They produce and file the notes, which cor- 
respond with the description of the bill, and they and 
their sister Elizabeth Felton depose that the notes were 
executed for the land. They undertake to explain 
the delay in asserting their rights by saying that the 
notes were made for the purpose of securing them 
and their sister a small yearly income, and that their 
rights had always been recognized up to the death of 
J. A. Blakemore on Februarv 4, 1878. 

The defendants, in their answer, admit the sale of 
the land to Barringer, but deny the terms of sale as 
alleged, saying: "While it is probably true that com- 
plainants hold the several notes described in their bill^. 



DECEMBER TERM, 1881. 55 

White V. Blakemore. 

they deny that the notes were given for the purchase 
of the land in question." They rely on the statutes 
of limitation, laches and lapse of time. 

It will be noticed that the bonds as mentioned in 
the title bond are "in the sum of $2,800." Three 
bonds of $300 each to each of the six bargainors 
-would be $5,400. And no addition of the bonds 
"would correspond with the sum recited. 

Daniel L. Barringer died in 1852, leaving a widow 
and one daughter surviving. The daughter had mar- 
ried J. A. Blakemore. Blakemore qualified as the 
administrator of Barringer^s estate. Barringer^s widow 
died about 1859, his daughter in 1873. Barringer 
lived on the land in controversy until his death. 
Blakemore and wife continued in possession of the 
land until her death, and Blakemore retained posses- 
sion until his death in February, 1878. The defend- 
ants are the children of Blakemore and wife. 

Anna White, the widow of Wm. White, died Feb- 
ruary 20, 1850, and, on November 4, 1851, a general 
settlement was had between Barringer and wife on 
the one part, and her sisters on the other part. The 
result, as embodied in a written agreement signed by 
the parties, was that the other parties purchased the 
interest of Barringer and wife in certain property 
specifically set out, presumably in North Carolina, at 
the price of $3,922.25, of which the greater part was 
paid in a mode designated, leaving a balance due to 
Barringer of $966.75. As to this balance, the agree- 
ment recites that Susan White, Emma White, and 
Sophronia White have each given the said D. L. 



56 NASHVILLE : 



White V. Blakemore. 



Barringer credit on his notes, which they respectively 
held against him, for $322.26. Each set of the notes 
introduced in evidence is accordingly credited with 
this sum as of November 4, 1851. And Barringer 
himself, on his copy of the agreement, made a mem- 
orandum in writing that he was indebted to each of 
the three sisters in three notes of $300 each, describ- 
ing them and the credits thereon, so as to correspond 
exactly with the notes oiiered in evidence by the 
complainants.' 

The complainants produce and file letters to show 
a knowledge of their claims, and continuous recogni- 
tion. The first lett<ir is from Barringer 's daughter 
under date of January 29, 1850. She wrote to one 
of the complainants that she was sorry her father 
had ever bought the lands in Tennessee as they had 
been a source of trouble to him, and added that he 
had sold all the lands except the place he lived on, 
concluding thus : " I learned from aunt Betsy that 
you all had a lien on that, so I hope there will be 
nothing lost." On April 14, 1852, Barringer himself 
wrote to Swain, in reference to the hope expressed 
, by Swain to him in a recent letter " of receiving a 
considerable sum of money on the girls' notes," that 
his only source for raising the money was by a sale 
of the land on which he lived, and which he had 
been trying to sell without success. He seems after- 
wards to have sold two hundred acres to one Barrett 
for $3,600, as will presently more fully appear. On 
December 6, 1853, after Barringer's death, Blakemore 
wrote to Swain, concluding with the following post- 



DECEMBER TERM, 1881. 57. 

White V. Blakemore. 

script : " Please say to the Misses Whit« that I will 
send them a check for $500 by the 15th of January." 
On January 18, 1854, he did enclose to Swain a draft 
on New York for IJ500, which he directed him "to 
place as a credit on Gen. Barringer's notes." Blake- 
more made payments in 1853, 1854, 1855, 1856, 1858 
and 1862, all of which were equally divided between 
complainants and Sophronia. The last of his pay- 
ments was made December 24, 1862, and amounted 
to $666.66 for each of the three sisters. On January 
27, 1877, Blakemore, then confined to his bed by 
severe illness, directed one of his sons, who was 
writing to Elizabeth Felton, at Raleigh, N. C, 
to ask her to send him, as the writer worded the 
message, " a copy of the notes, with their credits, 
which you all hold against grandfather for land pur- 
chased in Tennessee." 

Barringer in his lifetime sold two bunded acres of 
the land to one Barrett. On May 26, 1856, the 
lawyer of Barrett, at the request of Blakemore, wrote 
to Swain that no deed could be found for the land, 
and requesting a deed. Swain replied, June 11, 1856, 
that he was not surprised that no deed was found, 
as he was very certain none was ever executed. Gen. 
Barringer, he says, gave his bonds for the purchase 
money, and the vendors covenanted to convey the 
title upon the payment of his bonds. He expresses 
a willingness, however, to make a title to the land 
sold, adding that a conveyance of the residue will be 
made when the purchase money is fully paid. In 
another letter of the 30th of the same month, in which 



68 NASHVILLE : 



"White V, BLakemore. 



he speaks of having also written to Blakemore on the 
subject/ Swain explains that Barringer and wife had 
conveyed their interest in the land in controversv in 
1839 in part payment for other lands, and given his 
bonds to his wife's sisters for $900 each, they giving 
him their bond to convey to him the land upon the 
payment by him " of these several sums of money." 
On July 21, 1856, a deed was drawn up by Swain, 
which was executed by the complainants, and by So- 
phronia White, Elizabeth Felton and Swain and wife, 
conveying the two hundred acres sold to Barrett in 
fee to Blakemore as administrator of D. L. Barringer. 
This deed recites the agreement of the 19th of No- 
vember, 1836, as obligating the vendors to c<»nvey the 
land upon the payment to them of $4,500, and recites 
further that Barringer had died after making various 
payments on account, "but leaving a considerable sum 
due and unpaid.^' 

Elizabeth Felton proves, upon her examination as 
a witness in this case, that she was to get $900 for 
her interest in the land, the same as each of her 
sisters, and that Barringer paid her at the time in 
cash $600, and gave her his note for $300. This 
note, with the payments endorsed, she sent as a gift 
to Blakemore's daughters, after his death. D. L. Swain 
died in 1868. The deposition of his widow is taken 
in this cause to prove his handwriting. She makes 
no claim for unpaid purchase money. 

It is clear, from the foregoing statement, that Bar- 
ringer (lid, on November 19, 1836, purchase the land 
in controversy, and execute the three sets of notes 



DECEMBER TERM, 1881. 59 

White V, Blakemore. 

sued on; that he made several small payments on 
them prior to November 4, 1851, on which latter 
date he received a credit of $322.26, by express con- 
tract, on each set; and that he recognized his lia- 
bility thereon by letter of April 14, 1852. It is also 
certain that Blakemore and wife, who continued to 
occupy the land after Barringer^s death in right of 
the wife as the only heir of Barringer, knew that the 
notes were outstanding, and understood that they were 
a lien on the land. It is clear moreover that Blake- 
more, either as administrator of Barringer, or as agent 
of his wife as heir, and as tenant by the curtesy, 
made payments to each of the three sisters on the 
notes sued on, the last and largest payment being on 
December 24, 1862; and that he treated the notes 
as unpaid shortly before his death by calling for a 
^'copy of the notes with their credits/^ If the notes, 
or the debts evidenced hy them, were a lien on the 
land, there is nothing to show the holding of the 
land in hostility thereto. 

The notes were under seal, and therefore not within 
the general statutes of limitations. These statutes did 
not apply to sealed obligations previous to the adop- 
tion of the Code in 1858, and the limitations of that 
compilation were restricted to caus^ of action accru- 
ing after the first of October of that year: Code, 
sec. 47. And the proof effectually disposes of any 
presumption of payment arising from lapse of time. 
The personal representative of Barringer would, it is 
true, be protected by the statutes of three and seven 
years in favor of the estates of decedents. But 



-60 NASHVILLE : 



White V, Blakemore. 



the lien retained on the land sold by the reservation 
of the legal title and by contract would not be im- 
paired by the bar of the right of action against the 
personal representative : Snow v. Booth, 8 De G. M. & 
G., 72; Bank of Metropolis v. Guttschlick, 14 Pet., 19; 
Heyer v. Pruyn, 7 Paige, 465 ; Barned v. Bariud, 6 
C. E. Green, 245 ; Harris v. Vaughn, 2 Tenn. Ch., 483, 
The relation of a purchaser by title bond to his ven- 
dor is similar to that of mortgagor and mortgagee, 
and his possesion is not adverse to the lien of the 
vendor, until it is made so by notice of a hostile 
holding: Gudger v. Barnes, 4 Heis., 570; Wood v. Neely, 
7 Baxt., 586. And this would be so as against pri- 
vies in blood or estate, the condition of the title being 
notice of the outstanding equity : Gudger v. Barnes, 
ut supra. There has been no adverse holding in this 
case up to the death of Blakemore. Neither he, nor 
the defendants, nor their mother ever gave notice 
of an intention to dispute the lien. Unless there is 
some other valid defense, the lien would be en- 
forceable. 

The defendants in their answer, while conceding 
that the complainants hold the notes as claimed by 
them, deny that the notes are a lien on the land. 
And it is certain, as argued by their counsel, that the 
title bond of November 19, 1836, recites the consid- 
eration of the sale of the land as only $2,800, which 
would make the consideration of each share correspond 
with the valuation of the share of Barringer and wife 
in the same land as set out in their conveyance of 
the previous day. It is also true that the consid- 



DECEMBER TERM, 1881. 6t 

Whfte v. Blakemore. 

eration of $900, as evidenced by the notes and deposed 
to by the complainants and their sister, would make 
the entire consideration largely exceed the sura men- 
tioned, and is not a multiple of that sum. But the 
evidence and the circumstances leave no doubt that 
the not^s produced were the notes executed by Bar- 
ringer at the time, and were given in whole or in 
part for the purchase money of the land. They would 
answer the description of the title bond to the extent 
of the actual consideration, although they might also 
include other considerations. To the extent of the 
purchase money of the land, they would constitute a 
Hen beyond question. 

Can we look outside of the terms of the title bond 
to ascertain whether the entire 4 amount called for by 
the notes was in fact purchase money of the land, 
or, even if not purchase money, was nevertheless 
charged upon the land so as to constitute a lien upon 
it? The consideration for the sale of land, it has 
been held by this court, is not required to be in 
writing by our statute of frauds: Whitby v. Whitby, 
4 Sneed, 473; Gass v. Hawkins, Thomp. Cas., 243. 
When the consideration is expressed in the writing, 
the recital is only prima faeic evidence, and the true 
consideration may be averred in pleading, and shown 
by parol proof: Perry v. Southern R. Go., 5 Cold., 138 ; 
Mowry V. Davenport, 6 Lea, 80, 93. An absolute ^eed 
may be shown by parol to be a mortgage to secure 
a specific debt: Ruggles v. Williams, 1 Head, 141. 
So, in the case of a title bond, a parol contract that 
the title retained should stand as security for a new 



62 NASHVILLE : 



White V. Blakemore. 



debtj not a part of the consideration of the land sold, 
would be good : James v. Fields,^ 5 Heis., 394. So, 
of an executory agreement touching land : Jones v. Jones, 
1 Head, 108. And if in the contract of sale a lien 
be retained to secure a debt for borrowed money, the 
lien will be good : Trezevant v. Betti%, 1 Leg. Rep., 48, 
A person having the legal title to land may retain 
it to secure any indebtedness due to him from the 
equitable owner, or those claiming under him, even if 
the indebtedness do not grow out of the land : Wiln 
Hams V. I^ovCy 2 Head, 80. But whether the latter 
equity would admit of active enforcement against heirs, 
after the personal estate of the ancestor has been pro- 
tected against the debt by the statutes of limitations 
intended for that purpose, has not been adjudged. 

Under these authorities, there can be little doubt 
that the complainants might show by pj^rol testimony 
either that the notes in controversy were given for 
the purcliasc money of the land covenanted to be con- 
veyed, or that the legal title was retained to secure 
the payment of the notes by special contract between 
them and the vendee, and either contemporaneously or 
subsequently. The burden of proof would be on the 
complainants, and, after the lapse of over forty years, 
the proof ought to be very clear and satisfactory. 

The complainants and their sister Elizabetli Fenton 
do say that the notes produced were given for the 
purchase money of the land, and the title retained to 
secure their payment. Swain seems to have enter- 
tained the same view, at any rate to iha extent that 
the title to the land was reserved to secure the notes. 



DECEMBER TERM, 1881. 63 



White V. Blakemore. 



His language, which differs in the transcript from that 
given in the argument submitted on behalf of the 
defendants, is : " Gen. Barringer and his wife con- 
veyed their title to the Sugar creek tract in 1839, in 
part payment for lands on Wilson's creek and else- 
where, and gave his bonds to Mrs. Swain and her 
sisters for $900 each. They, upon their part, gave 
their bond to Gen. Barringer to convey the title to 
the Sugar creek tract upon the payment of these sev- 
eral sums of money.'' And in the deed drawn up 
by him for the two Iiundred acres to Barrett he makes 
the following recital : " And whereas the said parties 
of the first part did, on the 18th day of November, 
1836, enter into a contract and agreement with the 
said Daniel L. Barringer to conyey to him a tract of 
land, which they owned, lying on Sugar creek in the 
said county of Bedford, containing seven hundred acres 
more or less, upon the payment to them of the sum 
of four thousand five hundred dollars." The bar- 
gainors in this deed are the five sisters, and he is 
the husband of one of them. 

The depositions of the complainants and their sister 
were taken without having the title bond before them, 
which was then supposed to be lost. It was after- 
wards found and filed, but neither party retook their 
depositions to explain the discrepancy between their 
recollection as dej)()sed to and the recitals of the instru- 
ment. And the question is what effect shall the 
evidence have against the writing. Treating the re- 
cital of the latter as true, it is almost certain that 
the notes were given not only in consideration of the 



64 NASHVILLE: 



White V. Blakemore. 



land in controversy, but in consideration of the other 
lands sold at the same time. And it is highly prob- 
able that it was intended that the title to the land 
should be retained to secure the payment of the not«B. 
But this was not done in the bond for title, nor is 
there any direct evidence to that effect. The theory 
of the bill is that the notes sued on were given for 
the land itself which is sought to be reached, and 
the evidence is to the same effect. The writing is 
unquestionably the best evidence, and is in conflict 
with the theory. The recitals of one of the other 
instruments executed at the same time is in accord 
with the title bond, and the two remaining deeds show 
the creation of an indebtedness of the vendee to the 
vendors, which, in the absence of any testimony to 
the contrary, there can be little doubt, was included 
in the notes executed at the time. That indebtedness 
has been extinguished as against the estate of the 
debtor by the statutes of three and seven years, and 
not having been fixed as a lien on the land by con- 
tract cannot be enforced against it. 

In this view, the recovery of the complainants 
must be limited to so much of the debt evidenced 
-by the notes as constituted the consideration money 
of the land in controversy. That would be the sum 
of $466.66 of each set of notes with interest payable 
annually. The general rule in this State, in respect 
to the appropriation of payments is, that a debtor 
owing different debts to the same person has a right 
to apply the payment at the time when made to either 
debt, and if he fails to do so, and the payment be 



DECEMBER TERM, 1881. 65 

White 1?. Blakemore. 

general y the creditor may apply it, and where no ap- 
propriation is made by either party, the law will apply 
it according to the intrinsic justice and equity of the 
case: ;8i^. Louis Type Foundry Co, v. Wisdom, 4 Lea, 
698 and cases cited. In this case, both the debtor 
and the creditor concurred, the one in directing, and 
the other in applying the payments to the notes sued 
on, without giving a preference to either consideration. 
The intrinsic justice and equity in such a case would 
be to apportion the payments pro rata between the 
t\v'o considerations. 

It remains to be considered whether the lien for 
the balance of debt due to complainants, under the 
foregoing rulings, can be enforced against the whole 
land, or against only a part of it, and what part. 
The contract between the parties, as shown by both 
the title bond and the other evidence, was that each 
owner of the land sold an undivided sixth interest, 
and received the purchaser's notes for an equal part 
of the purchase money. It was not a joint sale of 
the whole land for a single price to bo paid to all 
of the bargainors, either at once or in instalments, 
but a separate sale of each share for a separate con- 
sideration. The obligation of the contractors is tj^c 
same as if they had entered into separate covenants, 
except in so far as they may have made* themselves 
sureties for each other for the performance of the 
obligation. There is nothing in the written instru- 
ment nor in the proof to change the legal effect of 
the contract. In this view, as the share of any owner 

was paid for, the purchaser acquired the right to de- 
5 — VOL. 8. 



66 NASHVILLE : 



White V. Blakemore. 



mand , the legal title to that share. The bill concedes 
the payment of the purchase money of the shares of 
Anna White and Eleanor Swain, and Elizabeth Felton 
proves that her share has either been paid or donated 
to a portion of the defendants. The complainants are 
entitled each to subject her share to the balance of 
purchase money due her. They are also entitled to 
the balance of purchase money due to their sister So- 
phronia, and to subject her share of the. land to the 
payment thereof, in so far as they may be able to 
make to the defendants a good title to that share. 
Upon Sophronia's death, the legal title would descend 
to her surviving sisters, and the defendants as the 
heirs of their deceased sister Mrs. Barringer. The 
legal title vested in the latter, would be a naked title 
subject to the equity of the complainants for unpaid 
purchase money. The complainants are, therefore, in 
a condition to perfect the title to three-fifths of this 
share. And they may be able, by procuring and 
filing in a reasonable time, the deed of Elizabeth Fel- 
ton and Eleanor Swain, who are not before the court, 
to the other two-fifths to complete the title to the 
whole share. And it may be that the defendants are 
entitled to demand the deed of these two parties for 
the residue of the land, although they have not de- 
manded it. 

Judge Turney thinks that the complainants are en- 
titled to enforce their whole debt against the entire 
unconveyed tract of land. 

Something is said in the answers of the defendants, 
and the argument submitted for them, as to a defi- 



DECEMBER TERM, 1881. 67 



Belding Bros. v. Frankland. 



ciency in the quantity of the land sold. But the sale 
was clearly in gross, not by the acre, and their an- 
cestor got all he bargained for: Moses v. Wallace, 7 
Lea, 413. 

The decree of the chancellor will be reversed, and 
a decree entered in accordance with this opinion. 



Belding Bros. & Co. v. J. Frankland, Trustee. 

1. Assignment. Ride of construction. It is a rule of construction, that 

where a general clause in an instrument of conveyance is followed by 
special words in a<?cord therewith, the grant will be limited io the 
Rpecification ; and, therefore, a conveyance " of all property of every 
description, the same being embraced in a schedule annexed," will 
only pass the property mentioned in the schedule. 

2. Same. Act 0/I88I, ch. 121. If such omitted property be held to pass 

by virtue of the act of 1881, ch. 121, sec. 4, which provides: "That 
the trustee or assignee [under a general assignment for the benefit of 
creditors], shall be entitled to any other proi)erty of the debtor not 
embraced in the assignment," it will be by operation of law, not by 
the instrument. 

3. Vendor akd Vendee. Vendor may dlmffinn sale. Wfien. If a person 

purchase goods with the fraudulent intention of not paying for them, 
the vendor may, by promjit action, disaffim the sale, although the 
goods be delivere<l, and revest the property in him, and he may 
equally do so as against an assignee by operation of law. 

4. Same. Mere inmlvency of vendee not sufficient to avoid scde. Fraudulent in- 

teni may be inferred. Wlien. Mere insolvency will not suffice to avoid 
the sale, but the fraudulent intent may be inferred from the facts and 
circumstances, full knowledge by the purchaser of his insolvency be- 
ing always a controlling element. 



8pi 21 
2pi075 



68 NASHVILLE : 



Belding Bros. v. Fraiikland. 



5. Same. When property will revest in vendor. Assigiifie. The hopeless in- 
solvency of the purchaser at the time, coupled with the refusal on his 
part to treat the property as his, and the expressed wish to restore the 
property to the vendor, will revest the proj>erty in the vendor against 
an assignee by operation of law. 



FROM DAVIDSON. 



Appeal from the Circuit Court of Davidson county. 
Frank T. Keid, J. 

W. R. McNeily for Belding Bro. & Co. 

Smith & Allison for Frankland. 

Cooper, J., delivered the opinion of the court. 

An agreed case to test the question whether the 
vendor or the assignee of the vendee, under a general 
assignment for the benefit of creditors, has the better 
title to certain goods. The trial judge found in favor 
of the defendant, the assignee, and the . plaintiffs ap- 
pealed. 

On November 3, 1881, B. Levison & Bro., mer- 
chants at Nashville, ordered goods from Belding Bros. 
& Co. at Cincinnati, to the value of J153. The goods 
were shipped from Cincinnati on November 4, 1881. 
On the 7th of the same month, Levison & Bro. made 
an assignment of their stock to J. Frankland as trus- 
tee for the benefit of all their creditors. The assign- 
ment conveys "ail of our property of every description, 
the same being embraced in a schedule herewith an- 
nexed, and made a part of this conveyance." The 
goods in controversy were not mentioned in the sched- 



DECEMBER TERM, 1881. 69 

Belding Bros. v. Frankland. 

ule, nor were Belding Bros. & Co. named in the 
schedule of creditors attached to the assignment. There 
is a provision in the assignment that any creditor of 
the assigning firm shall share in the benefits of the 
conveyance although omitted from the schedule. The 
trustee, upon the execution and registration of the as- 
signment, immediately took possession of the effects 
conveyed, and began to execute the trust, but the 
goods of Belding Bros. & Co. had not then reached 
Nashville. Afterwards, the goods arrived and were 
delivered by the carrier to the drayman, who had 
been, previous to the assignment, employed by Levison 
& Bro., with authority to receive and receipt for goods 
consigned to the firm. This authority had not been 
revoked, and no special authority had been conferred 
upon him after the execution and registration of the 
assignment. The drayman receipted for the goods in 
his own name, and delivered them to the trustee. 
After the goods were received by the trustee, Levison 
& Bro. expressed to him the desire that, as they had 
not been paid for, they should be shipped back to 
Belding Bros. & Co. The trustee, acting under legal 
advice, took charge of the goods, claiming them as 
part of the assets of Levison & Bro., but kept the 
proceeds of their sale separate from the other assets, 
in order to prevent complication in the event of liti- 
gation. On November 12, 1881, Belding Bros. & Co., 
after the goods had been received by the trustee, wrote 
to their attorney at Nashville to stop the goods in 
transit, and, if they had been delivered after the exe- 
-cution of the assignment, to take charge of them. 



70 NASHVILLE : 



Belding Bros. v. Frankland. 



The schedules to the assignment^ made a part of the 
agreed case, show assets to the amount of about $13,- 
700, and liabilities to about $33,000. 

It is a recognized rule of construction that where 
a general clause in an instrument of conveyance is 
followed by special words in accord therewith, the 
grant will be limited to the special matter. And, 
therefore, by a conveyance of all property of every 
description, the same being embraced in a schedule 
annexed, only the property in the schedule will pass: 
Wood V. Rawdiffe, 5 Eng. L. & Eq., 471 ; WUIcea v. 
Ferris, 5 Johns., 335; Rundldt v. Dole, 10 N. H., 
458; Mima v. Armstrong, , 31 Md., 87; Dinscoll v. 
Fiske, 21 Pick., 503. By a recent act of the Leg- 
islature, which undertakes to regulate general assign- 
ments by debtors for the benefit of creditors, it is 
provided: "That the trustee or assignee shall be en- 
titled to any other property of the debtor not embraced 
in the assignment, and not exempt from execution": 
Act of 1881, ch. 121, sec. 4. If the property be not 
embraced in the assignment, it is obvious that it can- 
not pass to the assignee hy virtue of the instrument. 
Certainly as to real estate, the title to which must be 
conveyed by instrument in writing containing a suffi- 
cient description to identify it, and the conveyance of 
which must be registered to be good against creditors 
and bona fide purchasers for value, there will be some 
difficulty in carrying out the legislative intent disclosed 
by the act. There will be less difficulty as to per- 
sonalty, where neither writing nor registration is es- 
sential, for the statute may be treated as in the nature 



DECEMBER TERM, 1881. 71 

3elding Bros. v. Frankland. 

of a bankrupt or insolvent law. In that view, the 
assignment would be an act of bankruptcy, and the 
title to the property would pass by operation of law. 
The argument submitted makes no objection to the 
eflBciency of the act to this extent, but takes it for 
granted. We shall act upon the concession in this 
case, without deciding the question. 

It is now well settled both in England and Amer- 
ica that if a person purchase goods with the fraudulent 
intention of not paying for them, the vendor may 
disaffirm the sale, although the goods be delivered, and 
revest the property in him, and recover them by ac- 
tion against the vendee: Load v. Green, 15 M. & W., 
216; Stewart v. Emerson, 52 N. H., 201; Kline v. 
Baker, 99 Mass., 253; Cary v. IlotaUing, 1 Hill, 311. 
The mere insolvency of the purchaser, without more, 
will not suffice to avoid the sale: Ex parte Whiitaker, 
L. R. 10 Ch. App., 446; Nichols v. Pinner, 18 N. 
Y., 300; Rowley v. Bigehw, 12 Pick., 307. Yet the 
fraudulent intent may be deduced from the facts and 
circumstances without any actual representations, full 
knowledge by the purchaser of his insolvency being 
always a controlling element : Hennequin v. Nayler, 24 
N. Y., 139; Thompson v. Rose, 16 Conn., 71; Tal- 
cott V. Hedet'son, 31 Ohio, 162. If the vendor may 
recover possession of the goods against the vendee, he 
has the same right against an assignee under a volun- 
tary assignment for the benefit of creditors, who stand 
in the shoes of the assignor: Nichols v. Michael, 23 
N. Y., 264. The rule is general, in the absence of 
a statute or fixed statutory policy to the contrary, that 



72 NASHVILLE: 



Beldirg Bros. v. Frankland. 



a title or equity good against a party will be equally 
good against an assignee under a voluntary assignment 
to secure pre-existing debts : Petigrew v. Turner, 8 
Hum., 440; Bromn v. Vanlier, 7 Hum., 239; Fawell 
V. Heelis, Arab., 726 ; Haggeriy v. Palmer, 6 John. 
Ch., 437; Keeler v. Field, 1 Paige, 312; Harding v, 
Meiz, 1 Tenn. Ch., 610. And, a fortiori, against an 
assignee by operation of law, as an assignee in bank- 
ruptcy, who, it has been held by the very highest 
authority, in precisely this class of cases, takes only 
the defeasible title of the bankruj)t purchaser, and 
must yield to the vendor upon a prompt disaflSrmance 
by him of the contract: Donaldson v. Farwell, 93 U, 
S., 631. The latest decision on this subject holds that 
while silence is not fraud, concealment of insolvency, 
with no reasonable expectation of paying, renders a 
sale fraudulent, and the vendor is entitled to recover 
the property from the vendee's voluntary assignee: 
Davis v. Stewart, 8 Fed. Rep. — , an abstract of 
which is given in 24 Alb. L. J., 515. And it seems 
to have been held that the receipt of goods by an 
insolvent, with design not to pay for them, would 
avoid the sale, although he had no such design when 
he ordered them : Pike v. Wieting, 49 Barb., 314. 

In the case before us, the facts disclosed leave no 
doubt that Levison & Bro. were utterly insolvent at 
the time of their purchase of the goods from Belding 
Bros. & Co., and must have known the fact, their 
assignment having been made only three days after the 
shipment of the goods. They did not include the goods 
in their assignment to the defendant, nor mention the 



DECEMBER TERM, 1881. 73 

Belding Bros, v, Frankland. 

plaintiffs in their schedule of liabilities^ and, as soon 
as they learned that the goods had been received by 
the defendant they desired him to ship them back to 
the plaintiffs. There is, therefore, in this case knowl- 
edge of insolvency by the purchasers at the time of 
the purchase, concealment of the fact, actual insolvency 
before a receipt of the goods, and a refusal of the 
purchasers to recognize the goods as belonging to them. 
If the suit was against the purchasers there would be 
no doubt of the right of the plaintiffs to recover the 
property. The defendant has only title by operation 
of law, if he has title at all, and stands in the shoes 
of his assignors. 

It appears from the opinion of the trial judge, 
which is in writing and filed with the record, and the 
fact is conceded in the arguments of the counsel, that 
this view of the case was not presented to the judge, 
nor considered by him. His opinion rested entirely 
upon the ground that the title to the goods vested 
in the purchasers by the delivery to the carrier, and 
passed by virtue of the act of 1881 to the defendant. 

Reverse the judgment, and enter judgment here in 
favor of the plaintiffs in accordance with the agree- 
ment of the parties. 



74 NASHVILLE: 



The State v. Campbell. 



The State ex rel. Jas. P. Johnson v. E. B. Campbell. 

Clerk Coitnty Coukt. The power to fill a vacancy in the office of county 
court clerk belongs to the justices of the county, and not to the county 
judge. 

FROM WILLIAMSON. 



Appeal in error from the Circuit Court of Will- 
iamson county. W. S. McLemore, J. 

E. H. East, Atha Thomas and J. P. Johnson for 
Johnson. 

Campbell & Son and J. B. Campbel for Campbell, 
McFarland, J., delivered the opinion of the court. 

The controversy in this case is, whether the county 
judge of Williamson county or the quarterly court, 
composed of the justices, has the right to fill a va- 
cancy in the county clerkship occasioned by the resig- 
nation of the regular incumbent. 

The defendant Campbell was appointed by the county 
judge to fill the vacancy, and inducted into the office; 
subsequently, the relator Johnson was appointed or 
elected by the justices at an adjourned meeting^ of the 
quarterly term, but the defendant refusing to surrender 
the office, this proceeding was instituted in the circuit 
court of the county under the . provisions of the chap- 
ter of the Code beginning with section 3409. 



DECEMBER TERM, 1881. 75 

The State v. Campbell. 

The bill was in the first instance in the name of 
the relator Johnson. A demurrer was filed upon the 
ground that the proceeding could only be instituted in 
the name of the State by the attorney general. Afler 
argument, but before action upon the demurrer, an 
amendment was allowed, changing the bill so as to 
make it a proceeding in the name of the State by the 
district attorney general, upon the information of James 
P. Johnson, and the bill was signed by said district 
attorney. The demurrer was thereupon overruled, and 
the defendant required to plead or answer, and he 
answered accordingly. The defendant would no doubt 
have had the right to demur to the bill as amended, 
but it does not appear that he offered to do so, if 
indeed he had any ground for doing so as to the 
mere form of the remedy. It was held in the case 
of the State ex reL v. McOonnell, 3 Lea, 333, that 
sueh bill must be filed by the attorney general, or at 
least that its filing must be assented to by him. 

It is now argued that the bill can only be filed 
by the district attorney upon the direction of the Leg- 
islature, or of the Governor and attorney general for 
the State. Sections 3412 and 3413 provide: "That 
the suit is brought by the attorney general for the 
district or county, when so directed by the general 
assembly, or by the Governor and attorney general of 
the State concurring.'' Sec. 3413: "It is also brought 
on the information of any person, upon such person 
giving security for costs of the proceedings, to be ap- 
proved by the clerk of the court in which the bill 
is filed." 



76 NASHVILLE : 



The State v. Campbell. 



Reading these two sections together and giving ef- 
fect to both, the fair construction is, that the proceed- 
ing may be instituted by the attorney general for the 
district or county, upon the information of any person 
who will give security for costs; and when brought 
upon such information and security for costs, the di- 
rection of the general assembly, or Governor and at- 
torney general for the State is not required. The bill 
may be filed either upon the direction of the general 
assembly, Governor and attorney general without secu- 
rity for costs; or upon information and security for 
costs, without more. 

Nor are we inclined to think that leave of the 
court was necessary to file the bill. The chapter of 
the Code prescribes this as a remedy, where, among 
other things, any person unlawfully holds or exercises 
a public office; and by sees. 3419 and 3420, it is 
provided in substance that the rights of the person 
really entitled to the office may be set up in the bill 
and adjudged on the hearing of the cause, so that in 
reality it i$ a mode by which the right to the office 
may be determined, and the contest between different 
claimants adjudged, if the attorney general for the 
district or county chooses to allow the proceeding to 
be instituted by his authority. It is styled by sec. 
3411, "a bill in equity," and the chapter has no pro- 
visions requiring leave of the court to be first had. 
While it was intended as a substitute for the obsolete 
writ of quo loarrantOy or information in the nature 
thereof, yet the entire proceeding is regulated by the 
<3hapter referred to. The filing of the bill by the 



DECEMBER TERM, 1881. 77 

The State v. Campbell. 

attorney general for the district upon information, seems 
to be a matter of right. At all events, the chapter 
being silent as to the necessity of obtaining leave of 
the court, we cannot add this as an additional require- 
ment. But this objection was not made in the court 
below — if so, it might have been obviated. The ques- 
tion was, therefore, not properly raised : 3 Lea, 340. 
This brings us to the merits of the controversy, 
that is to say, whether the power to fill the vacancy 
belongs to the county judge or the quarterly court, 
composed of the justices. The very elaborate and 
carefully prepared arguments of counsel have furnished 
plausible reasons to support a decision either way. 
The county court of pleas and quarter sessions, com- 
posed of the justices of the county, was established in 
North Carolina before the formation of the State of 
Tennessee, and was regarded as one of the established 
courts when the - government of this State was organ- 
ized, and so continued until the adoption of the con- 
stitution of 1834. Previous thereto the Legislature 
had, from time to time, reduced the number of justi- 
ces required to hold for some purposes, but the or- 
ganization of the court and its general jurisdiction^ 
remained the same. After the adoption of the con- 
stitution of 1834, which left the establishment of infe- 
rior courts to the Legislature, by the acts of 1835, 
the judicial system was reorganized, and by chapter 6, 
this court was re-established under the name of the 
** county court," to be composed as before of the jus- 
tices of the county. All jurisdiction, however, over 
jury trials — which it formerly had — was taken away 



78 NASHVILLE: 



The State v. Campbell. 



and this court has ever since been in existence and 
known as the county court, composed of the justices : 
Code, sec. 4179. 

By the act of 1837-8, amending the act of 1835, 
provision was made by which all except the quarterly 
terms of the courts might be held by three of the 
justices to be selected for that purpose, styled the 
quorum court; and afterwards the judicial powers of 
the court to a great extent, as they were increased 
from time to time, were vested in this quorum court: 
Code, sees. 4201-2-3. The court, however, remained 
the same, the only difference being that for certain 
purposes only three justices were required to be pre- 
sent. The quarterly terms were still held by all the 
justices or a majority. 

The act of 1858, creating county judges for certain 
counties, Williamson among others, transfers to the county 
judge, who is to hold the monthly courts, the powers 
and jurisdiction of the quorum court, and provides that 
" The county clerk shall be the clerk of the county 
court to be held by the county judge " : Code, sec. 
4199. It is conceded that the power to fill the va- 
cancy is vested in the cou7iy but the question is whether 
it is the quarterly court held by the justices, or the 
monthly term by the county judge. 

The second clause of art. 7 of the constitution of 
1870, which is identical in this respect with the con- 
stitution of 1834, is in these words : " Should a va- 
cancy occur subsequent to an election in the office of 
sheriff, trustee or register, it shall be filled by the 
justices; if in that of clerk to be elected by the 



DECEMBER^ TERM, 1881. 79 



The Stfite v. Campbell. 

people, it shall be filled by the court ; and the per- 
son so appointed shall continue in office until his 
successor shall be elected and qualified, and such office 
shall be filled by the qualified voters at the first elec- 
tion of any of the county officers." 

The question is, the meaning of the language, "that 
if a vacancy occur in the office of clerk to be elected 
by the people, it shall be filled by the court." Clerks 
of the county court are elected by the people, under 
a previous article of the constitution, and therefore 
the clause quoted includes county clerks. But inas- 
much as the court is sometimes composed of the jus- 
tices and sometimes of the judge, the (question is which 
shall exercise this particular power. 

The constitutioQ only provides the general rule, 
that is to say, the vacancy shall be filled by the court; 
but as the county court was one of the inferior courts 
which the Legislature might ordain and establish, it 
results that the Legislature might change the constitu- 
ents of the court and regulate or change its jurisdic- 
tion, or in other words, might provide as it did do, 
that for some purposes all or a majority of the jus- 
tices should be present, for other purposes three were 
sufficient, and finally that the powers and jurisdiction 
formerly exercised by the three justices should be 
transferred to the county judge. In other words, while 
the Legislature could not change the general rule of 
the constitution, " that the vacancy should be filled by 
the court," it might, nevertheless, say who should con- 
stitute the- court for one purpose and who for another. 
This principle is settled in the case of the State v» 



80 NASHVILLE: 



The State v. Campbell. 



Turk, decided in 1827, Martin & Yerger, 287. The 
constitution of 1796 had this clause : " Each court may 
appoint its own clerk, who may hold his office during 
good behavior." The Legislature in the same year 
passed an act, that where any vacancy occurred to be 
filled by the county court, the court should hold an 
open free election, and public notice should be given. 
In the case referred to, this was held to apply to 
vacancies in the office of county clerk, and further, 
that the constitution only provided the general rule, 
"that the clerks were to be appointed by the court," 
and that it was competent for the Legislature to reg- 
ulate the mode of exercising the power, and that in 
exercising the power of appointment given by the con- 
stitution, the Legislature had required that the court 
should hold an election and give the public notice. 

The clause of the constitutions of 1834 and 
1870, in regard to filling the vacancy, is similar to 
the clause of the constitution of 1796, in regard to 
filling the office by appointment in the first instance* 
So that it was competent for the Legislature, either 
under the constitution of 1834 or 1870, to provide 
that this power of filling the vacancy, conferred by 
the constitution upon the court, should be exercised in 
any mode the law-making power might deem proper, 
or that for the exercise of this power all the justices 
should be present, or any given number, or that the 
power might be exercised by the judge. 

The case then turns upon the construction of the 
several acts of the Legislature indicating the legislative 
intent upon this question. We have seen that the 



DECEMBER TERM, 1881. 81 

The State r. Campbell. 

BCt of 1796, requiring that in the filling of vacancies 
by the county court, an open free election should be 
held by the justices upon public written notice, was 
held to apply to a vacancy in the office of county 
judge. We find the substance of this act brought into 
the Code under the head of elections by the county 
court, at sec. 819, in these words: "When an officer 
is to be elected or a vacancy filled, it is the duty of 
the court to hold an open free election on the first 
day of the term, admitting all citizens as candidates, 
-except such as are prohibited by the constitution arid 
laws." Section 821 provides for public notice. An 
election by the county court implies, of course, an 
election by the justices. It will be observed that this 
section relates not only to officers to be elected, but 
io vacancies to be filled, and is certainly broad and 
general enough in its language to include any vacancy 
to be filled by the county court. And as it is con- 
ceded that a vacancy in the office of clerk is to be 
filled by the county court, it would seem to logically 
follow that this sec. 819 applies as well to a vacancy 
in the clerkship as any other. The only difficulty 
arises from the fact that the preceding section (818) 
undertakes to enumerate the vacancies to be filled by 
the county court, and mentions only those of sheriff, 
trustee and register, and makes no reference to the 
clerkship. Of course if there was nothing else, it 
might be held, as has been plausibly argued, that sec. 
819 relates only to the manner of making appoint- 
ments and filling the vacancies specified in the pre- 
ceding sections. But it will be remembered that the 
6 — VOL. 8. 



82 NASHVILLE : 



The State v. Campbell. 



Code was made up mainly by compiling and re-arrang- 
ing previous statutes, and often different sections of the 
same original statute were widely separated and placed 
in the new arrangement under different heads^ and the 
compilers only simply omitted to embrace in sec. 818 
all the vacancies to be filled by the county court. 
This, however, is found elsewhere, and the clause of 
the constitution we have heretofore quoted, as well as 
sec. 325 of the Code, plainly declare that vacancies in 
clerkships are to be filled by the court, and hence 
such vacancies come within the very letter of sec. 819. 
In fact, the vacancy in the office of county court clerk 
comes more directly within the letter of the constitu- 
tion as to vacancies to be filled by the court, than 
vacancies in the offices of sheriff, trustee and register; 
the language of the constitution is, that should a va- 
cancy occur in either of these offices, it is to be filled 
by the Jtistices. This, under the legislative construc- 
tion and the uniform practice, means the justices in 
county court assembled; but as to the clerk there is 
no room for construction, the positive language is that 
the vacancy is to be filled by the court. 

But if the question were otherwise doubtful, the 
fact that the act of 1796, from which sec. 819 was 
taken, was directly held to apply to a vacancy in the 
office of county court clerk, would seem to be con- 
clusive. It is true this was previous to the constitu- 
tion of 1834, and if the Legislature had at any time 
subsequently provided that the appointment to fill 
a vacant clerkship should be otherwise exercised, 
the argument would be destroyed, but not having 



DECEMBER TERM, 1881. 83 

• 1 

The State v, Campbell. 

done so^ it seems to us to lead to the conclusion in- 
dicated. 

Furthermore, the third section of the act of 1875, 
ch. 43, is to the same effect. This is " an act to 
lessen the number of justices composing the quarterly 
courts," and the first and second sections relate to that 
subject. The third section is as follows: "That should 
any office be required to be filled, or vacancy occur in 
any office required to be filled by the county court, it 
shall be the duty of the clerk, or if there be no clerk 
his deputy, and if there be no clerk or deputy, the 
acting chairman, to give at least ten days' notice to 
every justice of the peace of his county, to assemble 
at the court-house of the county, in order to fill such 
vacancy; and in filling such vacancies all the justices 
of the county shall be entitled to attend and draw 
pay, but shall not draw pay for more than one day, 
and a majority of the justices of the county shall be 
necessary to constitute a quorum." 

The language of this section applies to any vacancy 
to be filled by the county court, and as this includes 
a vacant clerkship, and especially as the mode of filling 
a vacant clerkship is not otherwise provided for, we see 
no reason why this act should be held not to apply to 
the mode of filling a vacant clerkship. This is further 
strengthened by the circumstance that the act refers to 
cases where there may be neither clerk or doputy clerk, 
and naturally the inference would be that in such case 
the vacancy in that office would be the one to be 
filled. We may add, if this were a question of doubt, 
the power should be held to belong to the justices. 



84 NASHVILLE : 



Jones V. Matthews. 



where it was certainly originally lodged, rather than 
to the one man. 

This was the conclusion of the circuit judge, and 
his decree will be affirmed. 



C. H. Jones v. S. G. Matthews et al. 

Witness. Accommodation endorser. An a<»commodation endorser is a com- 
petent witness, in a suit brought against him by an innocent holder 
for value before maturity, to prove that a material alteration of the 
note had been made after he had endorsed it and before its delivery 
to the person for whose benefit it was made. 



FROM DAVIDSON. 

Appeal in error from the Circuit Court of David- 
eon county. N. Baxter, J. 

Thruston & Bradford for Jones. 

Smith, Baxter & Allison for Matthews. 

Cooper, J., delivered the opinion of the court. 

Suit upon a note, brought by a person claiming 
to be an innocent holder for value before maturity 
against two accommodation endorsers. Verdict and 
judgment for defendants, and plaintiff appealed. 



DECEMBEE TERM, 1881. 85 

Jonefl V. Matthews. 

The note was one of a series of not?s given for 
rent. The defense was that after the note had been 
endorsed by the defendants for the accommodation of 
the makers, it was materially altered by the insertion 
of the words, "To bear interest at the rate of ten 
per cent, after maturity." The trial judge excluded 
the testimony of the maker of the note who delivered 
it to the original .creditor, and who was offered as a 
witness by the defendants to prove that he made the 
alteration, after the note was endorsed by the defend- 
ants, in the presence and at the request of the cred- 
itor. But the judge admitted the defendants them- 
selves to testify that when they endorsed the note, 
as they did for the accommodation of the makers, 
and delivered it to one of the makers, it did not 
contain any clause calling for interest, and that it 
was afterwards altered by the insertion of the words 
quoted, without their knowledge, consent or authority. 
The note itself appears to have been a printed form, 
the last printed words being "value received." Im- 
mediately opposite, and on a line with these words, 
is the signature of the first maker of the note. The 
interest clause is commenced just above the words 
"value received," and continued on a line to the 
word "after" inclusive, which last word is so near to 
the signature of the maker as to leave no interval 
for any other writing. The word "maturity" of the 
interest clause is therefore carried down and written 
immediately after the printed words "vahie received." 

The plaintiff objected to the admission of the tes- 
timony of the defendants, and the ruling of the court 



86 KASHVILLE : 



Jones V. Matthews. 



on the objection is now assigned as error. And the 
argument is that, upon grounds of public policy, the 
defendants, as endorsers of the note, were incompetent 
to invalidate it. The discussion resuscitates the famous 
cases of Walton v. Shelley, 1 Term. Rep., 296, and 
Jardaine v. Laahbroohey 7 Term Rep., 699, and revives 
the fierce, long- continued and often renewed struggles 
to which they gave rise. When Professor Greenleaf 
wrote his treatise on the law of evidence, while con- 
ceding that the ruling in Jordaine v. Lashbrooke, which 
overruled Waltort v. Shelley, had been adhered to in 
England, he thought the weight of American authority 
was in favor of the earlier ruling, that a party to a 
negotiable paper is not competent to invalidate it. At 
the present day, the latest writer on negotiable securi- 
ties thinks the better opinion to be that negotiable 
instruments enjoy no immunity from the general doc- 
trine of evidence, and that any party to a written 
contract, negotiable or otherwise, is competent to tes- 
tify as to its invalidity: 2 Dan. Neg. Inst., sec. 1217. 
The trial judge in this case, with commendable impar- 
tiality, applied the doctrine of Walton v. Shelley to 
the maker of the note, and the doctrine of Jordaine 
V. La^hbrooke to the endorsers. It is only the last 
part of his ruling that comes before us for revision. 

In this State, as elsewhere, the "battle of the 
books ^' has been fought several times, with varying 
success. In the earliest of our cases in which the 
question was raised, it was argued by three lawyers 
on each side, two of whom, Catron and Crabb, were 
afterwards judges of this court, one of them becoming 



DECEMBER TERM, 1881. 87 

Jones V. Matthews. 

an associate justice of the Supreme Court of the United 
States. The case was decided by three able judges 
unanimously, two of them, Haywood and Whyte, writ- 
ing concurring opinions : Stump v. Napier, 2 Yer., 35. 
The court threw its weight decidedly in favor of the 
later ruling of the King's Bench. Both of the judges, 
who wrote opinions, comment on the maxim of the 
civil law, "Tiemo allegans auam iurpUudinem est avdi- 
endus/^ with which Lord Mansfield sought to sustain 
his coQclusion in Walton v. Shelley y and show that it 
has no application to witnesses, as does Mr. Justice 
Field, more than half a century afterwards, in Davis 
V. Broum, 94 U. S., 426. The same thing had been 
done in the still earlier case of Townsend v. Bvsh, 1 
Conn., 260. The case of Stump v. Napier was de- 
cided in January, 1821. In December, 1859, the 
point came before this court whether the admissions 
of a party to a note while in possession of it were 
admissible against an assignee after maturity. The 
admissions were held to be competent, and the emi- 
nent judge, happily still living, who delivered the 
opinion of the court, said : " But it is argued that 
it is a rule of law, founded on public policy, that 
no party who has signed or endorsed a negotiable 
paper shall ever be permitted to invalidate it, and 
that, a fortiori, it must be so as to his declarations. 
It is sufficient for us to say, the established rule is 
otherwise in our State." He cites the preceding case 
as having established the rule : Drennon v. Smith, 3 
Head, 389. In the intermediate time, and in differ- 
ent cases, two eminent judges of this court, one of 



88 NASHVILLE : 



Jones V. Matthews. 



them also happily still living, rather arguendo than hy 
way of direct adjudication^ express a decided opinion 
in favor of the doctrine of Walton V. Shelley: Oliver 
V. Bank, 11 Hum., 74; Smithvriek v. Anderson, 2 
Swan, 573. In neither of these cases does it appear 
that Stump v. Napier was called to the attention of 
the court. 

A large majority of the highest courts of the States 
have adopted the later English rule, and have held 
the parties to negotiable paper competent witnesses for 
all purposes. The Supreme Court of the United States 
has adhered to the earlier rule, although the original 
cause in which it was announced has been virtually 
overruled in the case cited above. In this war of 
giants, it behooves us to move cautiously, and, taking 
warning from the past, to confine our decision to the 
case before us. 

In Walton v. Shelley, the endorser of a promissory 
note was held to be inadmissible as a witness, on 
grounds of public policy, to prove the note void for 
usury in its inception. The text writers treat this 
decision, and the authorities which have followed it, 
as limiting the rule to cases where the witness is 
called to prove that the security was void in its cre- 
ation, or at the time when the witness gave it cur- 
rency: 1 Gr. Ev., sec. 383; 2 Par. N. & B., 470. 
"And this," adds Greenleaf, "in the ordinary course 
of business, and without any mark or intimation ta 
put the receiver on his guard": 1 Gr. Ev., sec. 385 
and note. An endorser may, therefore, prove any fact 
not going to the original infirmity of the security when 



DECEMBER TERM, 1881. 89 

Jones V, MattbewH. 

endorsed by him : Barker v. Prentiss, 6 Mass., 430 ; 
Suck V. Appleton, 2 Shepl., 284; Stone v. Vance, 6 
OhiOy 246. As^ for example^ that the note had been 
paid after being put in circulation : Greenough v. Westy 
8 N. H., 400. Or that after he had endorsed and 
delivered the note to a third person to be presented 
to a bank for discount, the third person fraudulently 
put it into the hands of a broker; Woodhull v. 
JSolmes, 10 Johns., 231. Or that the note had been 
fraudulently altered : Parker v. Hanson, 7 Mass., 470. 
If the alteration were of a character to indicate to a 
person of ordinary prudence that it was made after 
the execution of the note, the purchaser would not 
be an innocent holder, and this point was left to the 
jury in the present case under a proper charge. 

If, therefore, the note was altered by the insertion 
of the words calling for ten per cent, interest after 
the defendants, as endorsers, had given it currency, 
the defendants would be competent to prove the fact. 
Excluding the testimony of the maker of the note^ 
whose proof tended to show that the alteration was 
made by him at the time he delivered the note to 
his lessor or creditor, the evidence was to the effect 
that the alteration was made after the endorsement, 
and before the delivery to the creditor. And the 
trial judge charged that it was not material that the 
alteration should have been made before the note was 
delivered to the creditor, or at his instance. In 
other words, he instructed the jury that the alteration 
would discharge the endorsers, if made without their 
knowledge or consent after they had endorsed the note, 



«0 NASHVILLE : 



Jones V. Matthews. 



and before the actual putting of the note into circu- 
lation. The inception or creation of the note as to 
the endorsers was when they put their names upon it 
for the accommodation of the makers. If there be 
any rule of public policy which closes their mouth as 
witnesses, it must be limited to an invalidity then 
existing. It could not extend beyond that date; for, 
if so, they would be at the mercy of the maker, and 
estopped to show even a change in the amount of the 
note, provided it be so skillfully done as to escape 
-ordinary observation. The estoppel, on the ground 
of public policy, can only relate to the note actually 
executed by the endorsers, not to another and a dif- 
ferent note. 

The allegation of the plea, that the alteration was 
made after the note had been "signed, endorsed and 
delivered by the defendants,^' ^^7} ^^ this view, be 
treated as the delivery by them to the maker, any- 
thing further being considered as surplusage, his Honor 
so expressly stating in his charge* 

There is no error, and the judgment will be af- 
firmed. 



DECEMBER TERM, 1881 



91 



Malone v. Searight. 



M. Malone v. Geo. Searight. 

1. PRACncE AND PLEADINGS. Charge of ih^ court. The trial judge can- 

not be put in error by the inaccurate use of words, not excepted to 
at the time, where the court can see that it was intended to convey & 
particular and correct meaning, and could not, when taken in con- 
nection with the residue of the charge, have misled the jury. If the 
charge assumes a fact to be conceded, contrary to the truth, it is the 
duty of the party to object to the assumption at the time. 

2. Same. Proof necessary to revive a debt haired by statute of limitations. To 

revive a debt barred by the statute of limitations, the same proof is 
required, whether the promise or acknowledgment were made pend- 
ing the running of the bar or after the bar had attached. 

3. Same. Affidavit for new trial. The affidavit of the unsuccessful party 

alone is insufficient to sustain a motion for a new trial, so far as it ia 
rested on the information of othei*s, or on the allegation that the op- 
posite party had sworn falsely in a particular matter, and therefore 
taken him by surprise, where the information aud the matter deposed 
to relate to the very point in issue between the parties. 




FKOM DAVIDSON. 



Appeal in error from the Circuit Court of David- 
fion county. N. Baxter, J. 

H. E. Jones for Malone. 



Guild & Dodd for Searight. 

Cooper, J., delivered the opinion of the court. 

Suit upon a note. The defendant pleaded the stat- 
ute of limitations, and the plaintiff replied a new prom- 
ise in time. The verdict and judgment were in favor 
of the defendant, and the plaintiff appealed in error. 



92 NASHVILLE : 



Malone i\ Searight. 



The note sued on fell due May 26, 1868, and the 
suit was commenced January 21, 1878. The defend- 
ant allowed a judgment by default to be taken against 
him, which the court set aside, at his instance, upon 
the condition that the statute of limitations should not 
be relied on as a defense in the event it appeared 
on the trial that the defendant was the principal debtor, 
and not the security. The note was signed first by 
M. Malonej Jr., and then by the defendant, with the 
word "security" following his signature. The issues 
were, therefore, whether the defendant was principal 
or security, and whether the note was taken out of 
the bar of the statute by the new promise. 

His Honor, the trial judge, commenced his charge 
to the jury by saying to them that the first question 
submitted was whether the defendant was the princi- 
pal or the surety on the note. If, he continues, de- 
fendant is the principal, that is, if he got the money 
and had the . benefit of it, and Malone, Jr., was only 
security, your verdict will be for the plaintiff for the 
amount of the face of the note and interest. "But 
if you find that Malone, Jr., was the principal,* and 
defendant only security, then you will find for defend- 
ant ; for if he is only security, he is allowed to plead 
and rely upon the statute of limitations, and it is 
conceded the note is barred." " His Honor then pro- 
ceeds to charge upon the effect of the indication upon 
the face of the note that Malone, Jr., was the prin- 
cipal and defendant security, and upon the facts which, 
if found, would show that the defendant was the prin- 
cipal debtor. And he next explains the law in rela- 



DECEMBER TERM, 1881. 93 

Malone i\ Searight. 

tion to a new promise which will take the cause of 
action out of the bar of the statute. 

The first error assigned for reversal is in that part 
of the charge in quotation marks above, and the ar- 
gument is that his Honor tells the jury that if they 
find that the defendant is only the surety they must 
render a verdict for him, because he is, in that event, 
entitled to rely upon the statute of limitations, and it 
is conceded the note is barred. The objections now 
made are that the charge assumes that it was con- 
ceded by the plaintiff that the note was barred, which 
was not true, and that the verdict must be in favor 
of the defendant in any event if it satisfactorily ap- 
peared to the jury that he was the surety and not 
the principal. 

If the clause in question be taken from its con- 
text, and considered abstractly, it would be amenable 
to the objections urged. But it is obvious, when the 
clause is construed in connection with the residue of 
the charge, that it was not intended to convey the 
meaning now contended for, and could not have been 
so understood by the jury. What his Honor meant 
was that if the jury found that the defendant was 
security, he was entitled to rely upon the statute of 
limitations, and as it must necessarily be conceded 
that sufficient time had elapsed to allow the bar of 
the statute to attach, the jury should, upon these facts 
and this part of the case, find for the defendant. 
Confining the language to the aspect of the case then 
being presented, and taking it in the sense intended 
and no doubt understood, the charge was correct. 



94 NASHVILLE 



MaloDe V. Searight. 



The trial judge cannot be put in error by the mere 
inaccurate use of words, not excepted to at the time^ 
when we can see that it was intended to convey a 
correct ri^le, and could not, when taken in connection 
with the residue of the charge, have misled the jury: 
Roller V. Baehmariy 5 Lea, 156. If the charge actu- 
ally assume as conceded a particular fact, it is the 
duty of the party to object to the assumption at the 
time: Hayes v. Cheatham, 6 Lea, 7; McColgan v. 
Langfordj 6 Lea, 117. 

The charge of the court as to what is necessary* 
to take the cause of action out of the statute, is 
strictly correct. He said to the jury that if the 
proof shows that within six years before the com- 
mencement of the action the defendant acknowledged 
the justice of the debt and made an unconditional 
promise to pay it, or made an unconditional acknowl- 
edgment of his obligation to pay the note, coupled 
with an expression of a willingness to pay it, that 
would take it out of the statute. It is now said 
that there is a distinction between the revivor of a 
debt already barred, and the continuation of a debt 
not barred by the recognition of the debt. In the 
former case, it is argued, the expression of a willing- 
ness to pay is essential, while in the latter such an 
expression is immaterial — citing 6 Bush, 375. It is 
not easy to see how the recognition of a debt evi- 
denced by note can have any greater effect than the 
note itself, which is a continuous recognition. And 
the doctrine of the Kentucky case seems to be in 
conflict with our published decisions upon the effect 



DECEMBER TERM, 1881. 95. 

MaloDe V, Searight. 

of a partial payment of the debt : Steel v. MatthewSy 
7 Yer., 313; Lock v. Wilson, 9 Heis., 784. And 
I am informed by my brother judges that in unpub- 
lished decisions the court has expressly held that the 
same proof is required to revive the debt during the 
running of the bar as after it has actually attached. 
And it is a sufficient answer to the assigument of 
error relied on, that the trial judge was not asked to 
charge upon the point. If the charge is correct as 
&t as it goes, the judge cannot be put in error by 
an alleged omiasion to which his attention was not 
called: N. & D. R. B. Co. v. Jones, 9 Heis., 27; 
HatUm V. Stewart, 2 Lea, 236. 

The affidavit of the plaintiff alone was insufficient 
to sustain the motion for a new trial, so far as it 
rested on the information of others : Scott v. WUsoUy 
Cooke, 315; Price v. Jones, 3 Head, 85. Or, so 
fer as it was rested on the ground that the defend- 
ant had sworn falsely, and thereby taken him by sur- 
prise: Jser V. Cohen, 1 Baxt., 421. The fact that 
the defendant was only liable on the note as surety 
was the very point in issue, and the plaintiff was 
negligent in not being present, and prepared to meet 
any evidence offered, by his own testimony. 

Judgment affirmed. 



96 NASHVILLE : 



Trafford v. Adams Express Co. 



8L 90 
lOL 67 
IIL ISO 

4ptii9 W. H. Trafford, Adm^r., v. Adams Express Comply. 

Injukies Resulting in Death. Statute. Constrwdion, Husband entitled 
to damages for injury to wife. Under the provisions of the statutes al- 
lowing a recovery of damages for a personal injury where death en- 
sues, the husband is entitled to the damages which may be recovered 
for an injury to the wife resulting in death. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of Davidson 
county. N. Baxter, Sr., J. 

M. M. Brien, Jr., and A. L. Demoss for Trafford* 

Bate & Williams for Express Company. 

Cooper, J., delivered the opinion of the court. 

On December 24, 1874, one of the delivery wagons 
of the Adams Express Company was left standing in 
front of a residence on a public street in Nashville, 
the horse attached thereto not being hitched, while 
the driver delivered a package at the house. In at- 
tempting to get into the wagon, after delivering the 
package, the driver stepped from a smooth stone on 
the curbing of the pavement, and, in the act, his foot 
slipped and he fell between the horse and the wagon. 
In falling, he grasped at the reins, but missed them, 
and struck the horse with his hand. The horse be- 



DECEMBER TERM, 1881. 97 

TrafFord v. Adamp Express Co. 

came frightened, and started off rapidly, and at the 
first crossing of the street with another he ran against 
Ann Moore, the plaintiff's intestate, inflicting injuries 
from the effect of which she died in a few hours. 
This suit was brought, March 3, 1875, by the plain- 
tiff, as her administrator, to recover damages for the 
killing. Ann Moore died without children, leaving 
her husband Samuel Moore surviving, and ct'rtain 
nephews and nieces who were her next of kin. Both 
by the writ and declaration, the suit purported to be 
brought for the use of the nephews and nieces, nam- 
ing them. The husband was not mentioned, and on 
the trial, he having in the meantime died, proof was 
introduced by the defendant tending to show that he 
was unwilling to sue the company. The trial judge 
was of opinion that the husband was, under the stat- 
ute, entitled to the benefit of any recovery, and so 
instructed the jury, adding that if the husband had 
compromised and settled with the company fur the 
killing of his wife, the plaintiff could not recover. 
The jury returned a verdict in favor of the defend- 
ant, and the court having refused to grant a new 
trial, the plaintiff appealed in error. 

If the trial judge was in error in holding that 
the husband was entitled to the benefit of the recov- 
ery in this action, the judgment must of course be 
reversed, and this is, consequently, the first point to 
be considered. 

Until changed by statute, the "artificial rule,'' as 

it has been aptly termed by Lord Hardwicke in Garth 

V. Cotton, 1 Dick., 215, of the common law, that per- 
7 — VOL. 8. 



98 NASHVILLE : 



TrafFord v, Adams Express Co. 



sonal actioDS die with the person, was recognized by 
the courts as prevailing in this State : Jones v. LUn 
tlefield, 3 Yer., 133; . Griffith v. Beaaly, 10 Yer., 434; 
Governor v. McManvs, 11 Hum., 152; Chei^ry w. Har^ 
din, 4 Heis., 199. And therefore no action for dam- 
ages sustained by the death of a person would lie 
against the individual or corporation causing the death: 
Hall V. N, & a R, R. Co., Thomp. Cas., 204. The 
common law was changed by the act of 1851, ch. 17, 
brought into the Code sees. 2291-2. 

The provisions of the Code are: 

"2291. The right of action, which a person who 
dies from injuries received from another, or whose 
death is caused by the wrongful act or omission of 
another, would have had. against the wrongdoer in 
case death had not ensued, shall not abate or be ex- 
tinguished by his death, but shall pass to his personal 
representative, for the benefit of his widow and next 
of kin, free from the claims of creditors. 

*'2292. The action may be instituted by the per- 
sonal representative of the deceased ; but if he de- 
clines it, the widow and children of the deceased may, 
without the consent of the representative, use his name 
in bringing and prosecuting the suit, on giving bond 
and security for costs, or in the form prescribed for 
paupers. The personal representative shall not in such 
case be responsible for costs, unless he sign his name 
to the prosecution bond. 

" 2293. If the deceased had commenced an action 
before his death, it shall proceed without a revivor. 
The damages shall go to the widow and next of kin, 



DECEMBER TERM, 1881. 99 

TraflTord v, Adams Express Co. 

free from the claims of the creditors of the deceased, 
to be distributed as personal property." 

Under these provisions, it was uniformly held that 
the action given could only be brought in the name 
of the executor or administrator of the person killed : 
Hall V. N. & a R. R. Co., Thomp. Cas., 204; Flatley 
V. M. & a R. R. Co., 9 Heis., 230; Bledsoe v. Stokes, 
1 Baxt., 314. The Legislature thereupon passed the 
«ct of December 14, 1871, ch. 78. 

The first section of this act is: "That sec. 2291 
of the Code of Tennessee be so amended as to pro- 
vide, that the right of action which a person, wh# 
clies from injuries received from another, or whose 
death is caused by the wrongful act, omission or kill- 
ing by another, would have had against the wrong- 
doer in case death had not ensued, shall not abate or 
be extinguished by his death, but shall pass to his 
widow, and, in case there is no widow, to his chil- 
dren, or to his personal representative for the benefit 
of his widow or next of kin, free from the claim of 
creditors." 

Section 2 is: "That section 2292 be so amended 
as to allow the widow, or, if there be no widow, the 
children to prosecute suit, and that this remedy in 
provided in addition to that now allowed by law in 
the class of cases provided for by that section, and 
section 2291 of the Code, which this act is intended 
to amend." 

The object of the act of 1871 seems to have been 
to confer upon the widow, and if no widow, upon 
the children of the deceased, the right to sue in their 



ICO NASHVILLE: 



Trafibrd v. Adams Express Co. 



own names respectively, in addition to the right pre- 
viously given to the personal representative. In other 
words, the act regulates the mode of bringing the suit, 
without altering the grounds of the action, or the in- 
terest of the beneficiaries in the recovery. And so 
it has been expressly held : Collins v. Ectst Tenn. & 
Va, jR. R. Co.y 9 Heis., 841 ; Greenlee v. East Term. 
<fe Va. B. R. Co,, 5 Lea, 418. 

The construction put upon the provisions of the 
Code was, in accord with the current of authority in 
similar enactments, that they were not intended to be 
limited to the case of the killing of a husband and 
fitther, but were designed to abrogate the common law 
rule, and to include every case of wrongful killing. 
They were, consequently, held to apply where an in- 
&nt or a married woman was killed : L, & N, i2. R. 
Co, V. ConnoTy 9 Heis., 19 ; Bream v. Brown, 5 Cold., 
168. It has not, however, been determined whether 
the husband would take any benefit in the recovery 
where his wife has been killed. The point is one 
of grave difficulty. On the one side, it is contended 
that the recovery is, by the very words of the stat- 
ute, to enure to the benefit of the next of kin, to 
be distributed as the personal property of the de- 
ceased, and that the husband and wife are not next 
of kin to each other within the meaning of the stat- 
ute of distributions. On the other hand, it is argued 
that the husband is, jure mariti, entitled to the ben- 
efit of any right of action accruing to his wife while 
living, and that the recovery in this case is in her 
right. It is further insisted that the word "widow,'* 



DECEMBER TERM, 1881. 101 

TraiFord v. Adams Express Co. 

in the sections of the Cede under consideration, should 
be held, in analogy to the general provision of the 
Code, sec. 50, that "words importing the masculine 
gender include the feminine and neuter," to include 
also the husband as "widower." 

It is the settled law of this State that while the 
husband is not, accurately speaking, the next of kin 
of his wife, and does not derive his title to claim 
her personal property from the statute of distributions, 
yet he is entitled to her personalty, including rights 
of action, as husband, being by virtue of the mar- 
riage the owner thereof: Hamrico v. Lairdy 10 Yer., 
222. It is necessary, therefore, to consider critically 
the nature of the right of action in this case. 

If the statute is to be strictly construed, and con- 
fined to the letter, the right of action of the deceased 
would pass to his personal representative only when 
there were "a widow and next of kin," and such a 
limitation was contended for in some of the States 
upon similar enactments. And it has been held in 
New York, upon a statute using these words, that, 
although both the widow and next of kin were not 
required, yet there must be either a widow or next 
of kin, and that the husband was excluded : Tilley v. 
Hudson River R. R. Co., 24 N. Y., 158; Drake v. 
Oilmore, 52 N. Y., 389. But the ground of action 
under the statute of that State, as will be noticed 
more particularly hereafter, was the "pecuniary injury" 
to the wife or next of kin, not the injury to the 
deceased. And the law of that State was changed, 
by the act of 1870, ch. 78, so as io give the ben- 



102 NASHVILLE : 



Trafford v. Adams Express Co. 



efit of the recovery to the husband^ widow or nex^ 
of kin. 

But the weight of authority undoubtedly is, and so 
this court has repeatedly said, that the object of the 
act was to abolish the common law rule, and to al- 
low the right of action which the injured party would 
have had if he had lived to survive to his personal 
representative. The intent of the Legislature to this 
eflFect is made plain by the language used in the va- 
rious statutes. The original act of 1851, after declar- 
ing, in the plain terms brought into the Code, that 
the right of action, which a person who dies from 
injuries would have had against the wrong-doer if 
death had not ensued, shall not abate or be extin- 
guished but shall pass to the personal representative, 
provides that the amount recovered shall be distributed 
to the parties entitled "in the same proportions as the 
personal property of the deceased.'' The act of 1856, 
eh. 94, brought into the Code sec. 1166 et aeq.y which 
makes a railroad company liable for all damages to 
persons or property upon failing to comply with cer- 
tain precautions prescribed "to stop the train and pre- 
vent the killing or injury of persons or property,'^ 
provides that the damages "may be recovered by the 
person or persons injured or aggrieved, or by their 
personal representatives." These acts have been car- 
ried into the Code with some condensation of the 
language, but without anything to change the intent. 
They leave no doubt that the Legislature intended 
that the right of action of the deceased should sur- 
vive, and that the recovery should constitute a pari 



DECEMBER TERM, 1881. 103 

Trafford v. Adams Express Co. 

of the personal estate of the deceased for distribution, 
"free from the claims of creditors." If the legisla- 
tion be construed liberally, as merely abolishing the 
common law rule as to personal actions dying with 
the person, the particular distribution prescribed by 
the statute would only take effect when the fund re- 
covered in right of the deceased was subject to dis- 
tribution. If, for example, the person injured had 
compromised the right of action, or assigued the re- 
covery in his lifetime, either nothing would pass to 
the personal representative under the statute, or any 
recovery which he might have would enure to the 
benefit of other parties. 

The first change of the common law rule was made 
in England by Lord Campbell's act, 9 and 10 Vict., 
93, which act, by reason of its peculiar wording, was 
held to have been intended to give compensation to 
the relatives of the person killed for the wrong done. 
The damages were not to be in the nature of a sola- 
Hum, but compensation to the family of the deceased 
equivalent to the pecuniary benefits which the family 
might have reasonably expected from the continuance 
of his life: Blake v. Midland E. R. Co., 18 Q. B., 
93; Bradbum v. Great Western R. R. Co., 10 Ex., 1. 
The injury to the deceased was not an element in the 
recovery, but only the pecuniary loss of the relative 
entitled to the benefit of the recovery, and therefore 
if no damage to the relative be proved, although he 
may be the father of the deceased, there can be no 
recovery: Burke v. Cork, etc., R. R. Co., 10 Cent., 
L. J., 48 ; Duckworth v. Johnson, 4 H. & N., 653. 



304 NASHVILLE: 



Trafford tJ. AdamR Express Co. 



The first statute passed in this country on the sub- 
ject was the act of the New York Legislature of 
1847, ch. 450. That act made the person or corpo- 
ration, responsible if death had not ensued, liable to 
an action for damages notwithstanding the death, to 
be brought by the personal representatives, the recov- 
ery to be *^for the exclusive benefit of the widow 
and next of kin/' The jury were allowed to give 
damages, not exceeding $5,000, as compensation "with 
reference to the pecuuiary injuries resulting from such 
death to the wife and next of kin." Under this 
statute, as under I^ord Campbell's act, it is the pecu- 
niarv loss of the next of kin which is to be recov- 
ered: Quin v. Moore, 15 N. Y., 432. This statute 
was copied literally or in substance by most of the 
States which undertook to modify the common law, 
and, of course, the measure of damages was the same. 
In Connecticut the Legislature provided in substance 
that all actions for injury to the person, although the 
same may result in instantaneous death, "shall survive 
to his executor or administrator," and the recovery is 
limited accordingly : Goodsell v. Hartford K, R. Co,, 
33 Conn., 51. The Virginia act seems also to be 
an exception to the general rule: Mathews v. Warner, 
1 Virg. L. J., 741. Where the right of action of 
the deceased, if death had not ensued, simply survives, 
the measure of damages would seem necessarily to be 
the injury to the deceased. The original statutes of 
the different States have been modified by more recent 
legislation, and the decisions of the courts conform 



DECEMBER TERM, 1881. 105 

*■ - - 

Trafibrd v. Adams Elxpre^s Co. 

with the changes, The statutes are collected in 2 
Thomp. on Neg., 1295 et seq. 

Our statute, in the plainest possible language, pro- 
vides that the right of action of the deceased for the 
personal injury shall not abate, but pass to the per- 
sonal representative, and contains no provision for the 
estimating of the damages by the pecuniary injury to 
the beneficiaries entitled to the recovery. And it was 
at first held by this court that the damages recover- 
able were such as the person killed could have him- 
self recovered if he had lived, and no more: L. A 
N. R. IL Co. V. Burke, 6 Cold., 45. But the court 
also held in the same case that there could be no 
recovery if the deceased was instantly killed. This 
ruling led to the curious result that while there might 
be a recovery for any lesser personal injury, there 
could be none for the greatest of all. The conclu- 
sion of the court was simply announced, not argued, 
and the logic by which it was reached is not very 
obvious. The statute provides that the right of ac- 
tion of a person, whose death is caused by the wrong- 
ful act or omission of another, shall not abate by his 
death. It manifestly contemplates that the cause of 
action which would have sustained a suit by the per- 
son injured if death had not ensued, shall pass to the 
personal representative. It makes no distinction be- 
tween a case where the injury produces immediate 
death, and where the victim lingers for a longer or 
shorter period. All that is required is that the in- 
jury be of a character for which the aggrieved party 
could have sued if he had lived. And there is ce 



106 NASHVILLE : 



TrafFord v. Adams Express Co. 



tainly no more difficulty in estimating the damages of 
an instantaneous killing, than for an injury which 
produces death in a short although appreciable inter- 
val. In Massachusetts the courts, while holding that 
the action will not lie if the death is instantaneous, 
have allowed it where the death was not instantaneous, 
and have held, in the latter case, that it does not 
depend upon the intelligence, consciousness or mental 
capacity of any kind on the part of the deceased after 
he is injured and before death : Mann v. Boston, etc,^ 
jB. R, Co,, 9 Cush., 108; Hollenbeck v. Berkshire R, 
R, Co., 9 Cush., 478; Bancroft v. Boston, etc., R. R. 
Co.f 11 Allen, 34. It is difficult to appreciate the 
distinction, or understand the necessity for such re- 
finements, especially in view of the fact that in every 
fatal casualty there must be a conceivable point of 
time, however minute, between the violence and the 
extinction of life : per Comstock, J., in Whitford v. 
Panama R. R. Co., 23 N. Y., 465, 486. It is not 
surprising, therefore, that when the question again 
came before this court, the previous decision was 
upon this point overruled : N. <Jt* C R. R. Co. v. 
Prince, 2 Heis., 580. It was also overruled on the 
point that the damages recoverable were only such 
as the person killed could have recovered had he 
lived. And it was decided that the recovery mi^ht 
be both for the damages to the deceased and the 
damages resulting from the death to the parties for 
whose benefit the right of action survives. The rule 
was laid down generally, without qualification, the 
learned judge, who delivers the opinion, remarking in 



DECEMBER TERM, 1881. 107 

TrafFord i\ Adams Express Co. 

substance that, looking to the obvious purpose of the 
Legislature in this alteration of the common law, it 
satisfactorily appeared to have been so intended. In 
another part of the opinion, he adds a reason, which 
would only apply to the class of cases then before 
him, namely: "It w^ould have been absurd to give 
the right of action for damages for the mental and 
bodily sufferings of a person whose death was instan- 
taneous." The court adhered to the ruling, upon 
re-argument of the point, in a case of instantaneous 
killing, without assigning the same reason, in Collins 
V. E(ist Term. & Va. E. R. Co., 9 Heis., 841. It 
was simply follow^ed in the N. <fr C. li. R, Co, v. 
Smith, 6 Heis., 174, a similar case. But it was ex- 
tended to a case where the person injured lived a 
few hours, in N, & C. R. R. Co. v. Stevens, 9 Heis., 
12, 14; and, perhaps, in Railroad v. Mitchell, 11 
Heis., 400. 

In this state of the decisions, the question of the 
statute of limitations applicable to the action of the 
personal representative for injuries to his intestate 
came before the court in Foirlken v. N. & I). R. R. 
Co., 9 Heis., 829, also reported in 5 Baxt., 663. 
By the Code, sec. 2772, actions for injury to the 
person are required to be bronglit in one year "after 
the cause of action accrued," and this statute was 
held to apply to this class of cases. The injury to 
Fowlkes's intestate was inflicted on the 31st of Jan- 
uar}% 1867, and administration was not granted on 
his estate, although he died a few days after the in- 
jury, until January 26, 1870, and the action was 



108 NASHVILLE: 



Traflford v. AdamB Express Co. 



commenced on the next dav. A maioritv of the 
court, held that the purpose of the statute (Code, sec. 
2291) was to repeal the common law rule, that ac- 
tions for personal injuries die with the person; that 
the statute makesT no distinction between the cases 
where the injured party lives for a time, and where 
death is instant^ineous ; that the cause of action ac- 
crues at the date of the injury, and is the same 
whether the action be brought by the party injured 
or his personal representative ; that the statute of 
limitations begins to run from the moment of the 
injury, and is not suspended during the time between 
the death of the party and the qualification of the 
personal represent^ative. The logic of this decision 
rests upon the postulate that the statute repeals the 
rule of the common law, and that it is the cause of 
action of the person injured which survives, upon his 
death, to his personal representative. The learned 
judge who delivers the opinion, concedes that some 
of the cases seem to have introduced a new element 
of damages in cases where the action is brought by 
the personal representative, namely, the injury to the 
widow or next of kin, and adds: ^'Sorne of these 
cases stand upon doubtful grounds." He calls atten- 
tion to the fact that the statutes of other States, 
specifying the State of New York, are not simply 
remedial, but create a new cause of action in favor 
of the personal representative of the deceased, which 
is wholly distinct from, and not a revivor of the 
cause of action which, if he had survived, the de- 
ceased would have had for his bodily injury : Whit" 



DECEMBER TERM, 1881. 109^ 

Trafford v, Adams Exprew Co. 

ford V. Pajiama R, R. Co., 23 N. Y., 465. In such 
case^ the cause of action would accrue upon the death 
of the party injured, and the statute might not run 
until there was a personal representative capable of 
suing^ if the right to sue were limited to the per- 
sonal representative. Two dissenting opinions were 
delivered. One of them concedes that the right of 
action accrues to the party aggrieved upon the hap- 
pening of the injury, but thinks that on his death 
the right is thrown upon the personal representative, 
and is only barred in one year after his qualification. 
The other opinion is rested upon the ground that 
the right of action, after the death of the person in- 
jured, is entirely new, and is based on the damages 
to the widow and next of kin from the death of 
their parent. 

Upon a careful examination of the question, and 
a review of the authorities and the law bearing on 
the subject, I concur with the majority of the court 
in the opinion delivered in Fowlkes v. N. <fr D. jB. 
JR. Co,, not only in the conclusion reached, but in 
the reasoning on which that conclusion is based. It 
seems to me clear that the Legislature, by the stat- 
utory provisions under consideration, intended to abol- 
ish the rule of the common law touching the abate- 
ment of rights of action for personal torts producing 
death, and to provide that the right of action of the 
person injured, subject to his control during life, 
should survive to his widow and children or personal 
representative as the case may be. And that the 
only damages which can be recovered in any action 



110 NASHVILLE: 



Trafford v, Adams Express Co. 



under the statutes are the damages which the deceased 
was entitled to recover if he had sued. In this 
view, the statutory provisions are simply those of the 
abatement and revivor of the particular class of ac- 
tions, the recovery, in the event of the death of the 
person injured, without a different valid disposition 
on his part, being distributable as other personal 
property of the deceased, free from the claims of 
creditors. The provisions dovetail exactly into our 
general system of laws regulating the rights of action 
of deceased persons. There is no anomaly cither in 
the character of the recovery or in its distribution. 

At common law, two separate causes of action 
may arise from the same injuries inflicted upon the 
person of the wife during coverture, one in the name 
of both husband and wife for her own injuries, the 
other in the name of the husband for the damages 
sustained by him in the loss of her services and so- 
ciety : Hyde v. ScynHor, Cro. Jac, 538 ; Brocldmnk 
v. Whitehaven^ etc., R, /?. Co., 7 Hurl. & X., 834. 
And the husband might bring his action notwithstand- 
ing the death of the wife from the injuries, but no 
action lav for the death itself: Baker v. Bolton. 1 
Camp., 493; Eden v. Lexington^ etc., R. R. Co., 14 
B. Mon., 204. The right of action given by the 
statute for the injury of the wife which results in 
death is, therefore, independent of the husband^s sep- 
arate right of action at common law. It would in- 
clude only the joint cause of action of husband and 
wife in right of the wife if death had not ensued, 
and any additional right of the wife for the injury 



DECEMBER TERM, 1881. Ill 

^^^^^■^^^^^i^.^^»^^^^— ■ ■■■■»■■ ■ ■ m wm^m-^Ki^^^^^^^^^.^^ ■ ■ ■ ■ - ■ ■ ■ i ^^^^^^ 

Trafford v. AdanvB Express Co. 

by reason of her death: 2 Thonip. on Neg., 1240, 
1259, 1272. The authorities differ upon the point 
whether, if the statute gives the husband the benefi- 
cial interest in the recovery for the death of his 
wife, his own cause of action can be united in the 
same suit with the cause of action arising in her 
right. Perhaps, under our system, which treats the 
person for whose use a suit is brought as the real 
party plaintiflF, there would be no difficulty in allow- 
ing them to be united. 

In the New York statute, the recovery, as we 
have seen, was compensation for the pecuniary injury 
to the widow and next of kin, not damages for the 
injury to the person killed, and it therefore followed 
logically that a husband had no interest in any re- 
covery for the death of his wife, until the law was 
changed so as expressly to include him. The same 
result would follow under our statute if the recovery 
was, either in whole or in part, as compensiition for 
the injury to the widow and next of kin, to the ex- 
tent of so much of the recovery. And so it was 
intimated, but not decided, by Nicholson, C. J., in 
Hagerty v. IIufjhcH, 4 Baxt., 222, 22(). If, however, 
the right of action which survives for the death of 
the wife, is the right of action which vested in the 
husband and wife, in right of the wife, before her 
death, the result would be different, and the an«>maly 
of depriving the husl)and of the recovery for the ben- 
efit of remote next of kin would not occur. For 
the wife's personal estate, including her rights of ac- 
tion, vest in the husband before administration taken 



112 NASHVILLE: 



TrafTord v. Adams Express Co. 



out, and he is entitled to the recovery jure maritl: 
£lliot V. Collier, 3 Atk., 527; Ilamrico v. Laird, 10 
Yer., 222; Tune v. Cooper, 4 Sneed, 296. It fol- 
lows that the husband of the plaintiff ^s intestate was 
entitled to the damages in this case, and there was 
no error in the charge of the court on this point. 

All the members of the court concur in the con- 
clusion thus reached, without adopting or accepting 
in all respects the reasoning of the opinion. They 
agree that the recovery for a personaL injury to the 
wife which results in death will enure to the benefit 
of the husband under the statutory provisions dis- 
cussed, and that there can be but one recoverv in 
such case. If the injury to the person for whose 
benefit the suit is authorized to be brought is to be 
taken into consideration in estimating the damages, 
it would be, in this case, the injury to the husband, 
and not to the next of kin. k 

This action having been brought by the personal 
representative expressly for the next of kin, naming 
them in tlie WTit and declaration, the conclusion 
reached seems necessarily to end the case. But there 
was no error on the part of the trial judge, in view 
of his construction of the statutes as to the right to 
the husband, to submit to them whether he had com- 
promised his right of action with the express com- 
pany, or, after examination, had become satisfied that 
the company were not to blame, and had waived all 
right of action by failing to sue within twelve months. 
These questions were fairly submitted to the jury. 

The affidavits offered on * the motion for the new 



DECEMBER TERM, 1881. 113 

Harney v. The State. 

trial were clearly insufficient. They disclose no fact 
which was not known before or at the trial, or which 
might not have been produced during the trial by 
the exercise of ordinary diligence. 
Affirm the judgment. 



Joe Harney v. The State. 

Criminal Law. Selling liquor within four miles of iTicoiyoi'died institutions 
of learning. Buyer nx^t guilty. Under the act of 1877, ch. 23, which 
makes it a misdemeanor, subject to both fine an«[ imprisonment, to 
sell or tipple any intoxicating beverage within four miles of an in- 
corporated institution of learning, the buyer of the liquor is not guilty 
of the offense. 



FROM DAVIDSON. 



Appeal in error from the Criminal Court of David- 
son county. J. M. (^uarles, J. 

John D. Brien for Harney. 

Attorney-General Lea for the State. 

Cooper, J., delivered the opinion of the court. 

The plaintiff in error was presented for that he 

"did sell and tipple an intoxicating beverage within 
8 — VOL. 8. 



8L Its 

11L904 

131 sao 



114 NASHVILLE: 



Harnev r. The State. 



four miles of an incorporated institution of learning." 
The only witness examined on the trial testified that 
the plaintiflF in error bought of the witness a drink 
of whisky within four miles of the Vanderbilt Uni- 
versity, admitted to be an incorporated institution of 
learning. The trial judge charged the jury that if 
they found that the plaintiff in error had bought a 
drink of whisky within four miles of the university, 
he would be guilty as charged in the presentment. 
The jury found him guilty, and he has appealed in 
error from the judgment rendered on the verdict. 

The act of 1877, ch. 23, under which the present- 
ment was found, provides that it shall not be lawful 
for any person to sell or tipple any intoxicating bev- 
erage within four miles of an incorporated institution 
of learning in this State, and that any person vio- 
lating the act shall be guilty of a misdemeanor. A 
tippling house is a place where spirituous liquors are 
sold and drank in violation of law : Bouv. Law Die. 
Sub voce. Or, as defined by this court under our 
statutes, a place where spirituous liquors are sold, 
without license, in less quantities than a quart, or in 
any quantity, to be drank at the place : Dunnaway v. 
State, 9 Yer., 350; Sanderlin v. State, 2 Hum., 315. 
The word tipple in the act of 1877 means to sell to 
be drank at the place of sale. The question is, there- 
fore, squarely presented whether, as the trial judge 
charged, the person who buys liquor sold contrary to 
the provisions of the act is equally as guilty as the 
seller, and punishable under an indictment which charges 
him as the seller. 



( 



DECEMBER TERM, 1881. 115 

Harney v. The State. 

The general rule undoubtedly is, that in misde- 
meanors all who are in any manner concerned, if 
guilty at all, are principals, and may be proceeded 
against accordingly: Ourlin v. The Staiey 4 Yer., 143. 
And, under a statute which forbade the sale of liquor 
by a slave, this court sustained an indictment against 
a white man for buying liquor from a slave, which 
t^harged him with aiding, abetting and encouraging the 
sale : State v. Bonner, 2 Head, 135. The learned 
judge who delivers the opinion says that, upon gen- 
eral principles, the purchaser of spirituous liquor, in 
violation of the statutes passed to suppress tippling, is 
as much guilty of a violation of the law, and as much 
amenable to criminal prosecution and punishment, as 
the seller. And there can be no doubt, upon the 
strict principles of the law carried out to their logical 
result, that the statement is warranted. But it is 
easy to see that, in the particular case before the 
-court, the condition of the vendor as a slave might 
well induce the court to consider the penalty of the 
act as directed against the white man who en« 
ticed him to sell. And the practice has never pre- 
vailed in this State, under the ordinary statutes againfi% 
tippling, to extend the punishment to the purchaser. 
'*No such prosecution," to borrow the language of 
Chief Justice Shaw upon the same question in Massa- 
j chusetts, "has been attempted within the knowledge 

of the court, although a similar law has been in force 
almost from the foundation of the government, and 
thousands of prosecutions and convictions of sellere 
have been had under it, most of which have been 



116 NASHVILLE : 



Harney v. The State. 



sustained by the testimony of the buyers." The chief 
justice admitted that it was difficult to draw any pre- 
cise line of distinction between the cases in which the^ 
law holds it a misdemeanor to counsel^ entice or in- 
duce another to commit a crime^ and where it does 
not. But he thought that the principle might be^ 
limited to offenses which are mala in se, in contradis- 
tinction to mala prohibita, or acts otherwise indifferent 
than as they are restrained by positive law. And 
the court held that the buyer was not indictable un- 
der a statute which prohibited the sale of liquors : 
Commonwealth v. WUlardy 22 Pick., 476. 

Mr. Bishop, while conceding the general principle 
to be as laid down in The State v. Bonner, finds that 
it is not rigidly applied to the lighter misdemeanors, 
because of the smaller degree of blame involved in 
the offense, or the special terms of the statute creating 
it. "If," he says, "the terms of a statute distinctly 
limit the penalty to persons who participate in the 
act only in a certain way, those terms furnish the 
rule of the court. Or, if the expression is general, 
but the offense is of minor turpitude, and especially 
if it be only malum prohibitum, the courts, by con- 
struction, will limit its operation to those persons who 
are more particularly within the reason or the express 
words of the enactment": 1 Bish. Grim. Law, sec. 
657. The same idea is a little differently expressed 
by Smith, J., in delivering the opinion of the Supreme 
Court of New Hampshire upon the question now being 
considered: "In cases of mala prohibita, the &ct that 
the penalty is in terms imposed upon only one of 



DECEMBER TERM, 1881. 117 

Harney o. The State. 

two parties whose concurrence is requisite to the com- 
mission of the offense^ and that the statute was made 
for the protection of the other party, who is generally 
regarded as the less culpable of the two, has repeat- 
edly been considered good ground for giving the stat- 
ute a constrnction exempting the party not named 
from criminal liability": The State v. Rand, 51 N. 
H,y 361. , 

One main object of the statute under consideration 
was to prevent the sale of liquor to the young stu- 
dents at the educational institutions of the State. Laws 
having the same object in view have long been on 
our statute books: Code, sees. 4862-3. The Legis- 
lature could scarcely have intended that these young 
boys, who might be thoughtlessly led into temptation, 
should be visited with the heavy punishment of the 
statute under consideration, — a fine of not less than 
$100 and imprisonment of not less than one month. 
They were intended to be protected, not punished by 
the statute. If, moreover, the buyer is equally guilty 
with the seller, he c&nnot be compelled to testify to 
a violation of the law, and almost the only means of 
punishing the offense at all will be cut off. 

For these reasons, we think his Honor erred in 
his charge, and reverse the judgment. 



i 



118 NASHVILLE: 



Harney v. The State. 



TuRNEY, J., delivered the following dissenting opin- 
ion, in which McFarland, J., concurred : 

Section 1 of the act of the General Assembly^ 
passed March 19, 1818, entitled "An act to prohibit 
the sale of intoxicating liquors near institutions of 
learning," enacts that "it shall not be lawful for any 
person to sell or tipple any intoxicating beverage 
within four miles of an incorporated institution of 
learning/' &c. 

Harney was presented and convicted for selling and 
tippling within four miles, &c. The proof is that he 
bought a drink of whisky from M. Singleton. 

The court charged that "if the defendant bought 
the drink of whisky outside of an incorporated town 
and within four miles of the Vanderbilt University, 
an incorporated institution of learning, then and in 
that event he would be guilty as charged, as there are 
no accessaries in misdemeanors, but all are guilty who 
have any guilty participation in the crime charged." 

A sale is an agreement by which (yue of the coti- 
tracting parties gives a thing and passes the title to 
it, in exchange for a certain price in current money, 
to the other party, who on his part agrees to pay 
such price: 2 Kent, 363. 

To constitute a valid sale there must be — 1. Proper 
parties; 2. A thing which is the object of the con- 
tract; 3. A price agreed upon; and 4. The consent 
of the contracting parties and the performance of certain 
axsts required to complete the contract: Bouvier's Law 
Dictionary. 



DECEMBER TERM, 1881. 119 

Harnev v. The State. 

By the terms of the foregoing definition, a buyer 
is as necessary to a sale as the seller. It is the 
buying and selling combined that constitutes the sale. 

Bouvier defines a tippling house to be "a place 
where spirituous liquors are sold and drank in viola- 
tion of law." From this it seems that both a sale 
and a drinking are necessary to constitute the act of 
tippling. Certainly the seller cannot tipple by him- 
self; he must have a purchaser, and that purchaser 
is of course a party to the tippling. It requires the 
concurring wills and acts of the two to constitute the 
offense. 

Webster defines tipple, ^Ho drink, as strong liquors, 
in luxury or excess." If this be the true definition, 
it would seem that the drinker is alone the tippler. 

We think, however, that the true rule is, that 
both seller and buyer are necessary to the offense, and 
that the term tipple, in a legal sense, means a sale 
and consumption. 

The latter part of the charge is well supported. 
In Conlin v. The State, 4 Yer., 143, the court says: 
"In all the lesser offenses, all persons who are in 
any manner concerned therein, if guilty at all, are 
principals and equally guilty" — citing 1 Chitty's Crim. 
Law, 261. 

In Harper v. The State, 3 Lea, 211, this court 
said: "If a prescription be a subterfuge to evade the 
law, the druggist, physician and buyer are liable to 
indictment or presentment." See, also, Newman v. 
State, 7 Lea. 

In State v. Bonner, 2 Head, 136, Judge McKinney 



1 



120 NASHVILLE : 



Harney v. The State. 



says : '^ We suppose it cannot be seriously controvert- 
ed that, upon general principles, the purchaser of spirit- 
uous liquors in violation of the statute passed to sup- 
press tippling, is as much guilty of a violation of the 
law, and as much amenable to criminal prosecution 
and punishment, as the seller. They are in all re- 
spects particeps criminia; they are alike willful vio- 
laters of the law. The express prohibition to sell, 
upon every just principle of construction, must be con- 
sidered as implying a prohibition to purchase. The 
purchaser, whether we regard his intent or the effect 
and consequences of his act, is no less guilty, no less 
within the mischief intended to be suppressed, than 
the seller. It matters not that the former is placed 
under the obligation of a bond or oath. This takes 
nothing from the force of the argument. He still 
stands guilty of wilfully participating in and aiding 
and encouraging the commission of a criminal offense. 
Does not this, upon the soundest principles of crim- 
inal law, constitute him a principal in the offense? 
We think it does. And perhaps it would be scarcely 
going too far to say, that he ought to be regarded 
as less excusable than the seller. He has not the 
poor pretext of the latter, that the forbidden traffic 
is, in part, his means of procuring a living." 

This decision was made in 1858, and has been the 
recognized law ever since, and we can see no good 
reason for overruling it after a lapse of nearly a 
quarter of a century. The presentment is sustained 
by both the letter and spirit of the statute, and strikes 
at the evil intended to be remedied. 



DECEMBER TERM, 1881. 



121 



Lvnn I'. Polk. 



Henry J. Lynx et al. r. M. T. Polk d al 

1. Judicial Department. Pmcerft of, Legidative department. The judi- 

cial department of Tennessee has no authority to invalidate an act 
of the Legislature because it was procured to be passed by bribery of 
the members of the Legislature. 

Freeman, J., dissenting, and Turney, J., expressing no opinion. 

2. Constitutional Law. Coupons receimble for taxea. The act, entitled 

"an act to compromise and settle the bonded indebtedness of the 
State of Tennessee," approved April 6, 1881, making coupons receiv- 
able for taxes, is unconstitutional and void. 

Deaderick, C. J., and Ewing, Sp. J., dissenting. 

3. Same. Legislative department. State sovereignty. The legislative depart- 

ment cannot surrender the powers and attributes of sovereignty essen- 
tial to the well-being and existence of the State. 

4. Same. Powers of the kgi4aHve department. Revenue. The Legislature 

cannot irrevocably aj)propriate (though in the form of a legislatorial 
contract) a material part of the public revenue, to purposes preferred 
above, and which postpone the matters of public current necessary 
expense. 

5. Same. Same, The I^egislature cannot make such an appropriation for 

a period }>eyond the term of its existence. 

Deaderick, C. J., and Ewing, Sp. J., dissenting. 

6. Suit against the State. A bill to enjoin the funding board, created 

by the act of 1881, from funding the bonded indebtedness of the 
State, is not a suit against the Stat€, nor a suit against officers of the 
State, within the meaning of the act of 1873, ch. 13. 

Ewing, Sp. J., dissenting. 

7. Same. Unconstituiimial act. An officer while executing an unconstitu- 

tional act, is not acting by authority of the State. 

8. Chancery Pleadings and Practice. Bill quia timet. Tax-payers, 

citizens of the State, may maintain a bill quia timet to restrain the 
executive officers of the State from funding the public indebtedness 
under an unconstitutional and void act. 

EwiNO, 6p. J., dissenting. 



81 m\ 
110 78 




122 NASHVILLE : 



Lynn v. Polk. 



9. Same. Same. Necemtry parties. The holders of Tennessee bonds are 
not necessary parties to such a suit. 



FROM DAVIDSON. 



Appeal from^ the Chancery Court at Nashville. A. 
G. Merritt, Ch. 

J. J. Vertrees, E. T. Taliaferro, Geo. Gantt, 
S. A. Champion, David Campbell, N. N. Cox, A. 
S. Marks, and Henry Craft argued the case for the 
complainants. 

* 

A. D. Bright, R. McPhail Smith, Sp'l Hill, 
Ed. Baxter, W. M. Smith and T. H. Malone ar* 
gued the case for the defendants. 

TuRNEY, J., said: 

On the 5th of April, 1881, the Legislature passed 
an act entitled "an act to settle and compromise the 
bonded indebtedness of the State.'' The 3d section, 
of the act is as follows: 

"Be it further enacted, that the coupons on said 
oorapromise bonds, on and after their maturity, shall 
be receivable in payment for all taxes and debts due 
the State, except for taxes for the support of the 
common schools and for the payment of the interest 
upon the common school fund, and said coupons shall 
show upon their face that they are so receivable." 

The 9th section provides the form of the com- 
promise bond, in which it is declared: "The coupons 
of the bonds as thev become due are receivable for 



DECEMBER TERM, 1881. 123 

Ly«n V, Polk. 

all taxes and debts due the State of Tennessee" — 
omitting the exception designated by the 3d section. 

The lOtli section makes it the duty of the fund- 
ing board (composed of the Secretary of State, Comp- 
troller and State Treasurer), immediately upon the 
receipt of the original bond or bonds and the issu- 
ance of the compromise bond or bonds, to cancel 
said original bond or bonds. 

This bill was filed on the 24th of May, 1881, 
attacking the act for various* causes, among them al- 
leging its unconstitutionality, and alleging that com- 
plainants are all resident citizens of the State of 
Tennessee; have been for many years; are now 
holders of property not exempt from taxation; and 
that they pay taxes to the State on their property. 
The bill charges that defendants are preparing with 
all possible haste to commence the work of funding. 
One of the circuit judges for the State granted a 
fiat enjoining action upon the part of Polk, Nunn 
and Nolan, the members of the funding board. There 
was a motion to dissolve the injunction. On its hear- 
ing the chancellor, of his own motion, dismissed the 
bill, and complainants appealed. 

In support of the action of the chancellor, it is, 
first, insisted complainants cannot sue at this time 
and in this manner. As w-e have seen, they are 
citizens and tax-payers of the State. It must be 
that, to the extent of taxes for which they are re- 
spectively liable, each has an interest in the ques- 
tions raised. The act of the Legislature and the 
defense to the bill constitute an effort in the direc- 



124 NASHVILLE : 



Lynn v. Polk. 



tion to make each pay such an amount of money a& 
may be assessed upon his property, to the end that 
the law shall be carried out. The act points as 
distinctly to each of the complainants and as directly 
affects his estate as if he were mentioned by name, 
his property enumerated in a statement of its char- 
acter and kind, with an actual calculation of the 
proportion of the amount of the debt and interest it 
must pay, with the bonds and coupons specifying the 
facts and the individual obligation of each complain- 
ant. If the law is valid, it makes an increase of 
taxes to be collected of each tax-payer, to be pro- 
portioned in the distribution of the additional levy 
of the annual three per cent, interest on the funded 
debt. The act, while in its present shape, is merely 
a proposal to contract. If the injunction is cut loose, 
and the creditors accept its terms and fund their 
debts, it is then an executed contract, and gives to 
the creditor the right and power to collect by law 
three per cent, of taxes annually, more than can now 
be collected by law. Without the contract the cred- 
itor is unable to force a payment of any part of the 
debt due him. The argument that the tax-payer is 
bound in honor and morals to pay, under existing 
laws, the debt and six per cent, interest, and there- 
fore can sustain no injury from a compulsion to. pay 
by law one-half that interest, and therefore ought not 
to be heard to complain, cg,nnot avail with the courts. 
We have nothing to do with the honor or morals of 
complainants; these they must decide upon for them- 
selves. The only question for us to decide, upon the 



DECEMBER TERM, 1881. 125 



Lynn v. Polk. 



right to sue, is, have complainants an interest in the 
subject-matter of the suit such as will entitle them to 
invoke the judgment of the court upon legal ques- 
tions? It is an inherent power of courts of equity 
to prevent, as well as to redress grievances, and if it 
is unlawful to compel debtors to pay three per cent, 
upon a contract drawing six per cent., but which 
rested upon no law save the honor and morals of 
the debtor, then the debtor may say he is aggrieved, 
and ask the intervention of the courts to prevent the 
enforcement in part of that agreement . which the cred- 
itor accepted solely upon his faith in the honor of 
the debtor. In such case, why may he not say, *^the 
law must leave us as it found us'^? And as it is, the 
creditor is not permitted to say to the debtor, "your 
security of honor and morals is not available, and I 
will make a contract to bind you in law as well as 
morals.^* Then, as these complainant tax-payers could 
not by the law at the time of the contract, and 
which is part of that contract, be compelled to pay 
anything, now that it is attempted to change the 
contract and the law, so as to compel the payment 
of three per cent, yearly on the $27,000,000 of in- 
debtedness, or their proportionate share of the addi- 
tional annual tax of $810,000, it must be that they 
have a direct and personal interest in the questions, 
and are proper parties to make them. 

I am unable to appreciate the argument that, in 
any event, the suit is prematurely brought; that if 
complainants would have the right to sue at all, they 
must wait for some wrong, actual or threatened. The 



126 NASHVILLE': 



Lynn t\ Polk. 



latter has already transpired, so far as the abstract 
right to sue is involved. As we have seen, the de- 
fendants are making all possible haste to comply with 
the act, fund the debt, and fasten the per centum 
on the tax-payer. This is not denied. On the con- 
trary, the effort to be relieved of the injunction sus- 
tains the allegation. If, when the act is a complete 
or executed contract and is being directly enforced, 
the tax-payer may resist it and relieve himself from 
its impositions, I can see no good and substantial 
reason why he may not strike it at the threshold 
and destroy it in its half-grown life. If the tax- 
payer may move at all, he may certainly move when 
he is . imminently threatened, as here. A preparation 
to aifect him is the beginning of his right of action, 
and he may commence defensive and protective pro- 
ceedings. If the tax-payer may not move in this 
matter no one can, and tliere may be a palpable and 
egregious wrong without any means of redress — a con- 
dition never admitted in the law. 

If there is no precedent for taking cognizance of 
the question, we must do as the courts of all ages 
have done in novel matters, — make one, founded in 
reason and solid justice. On this question we really 
need no case antecedent; general principles are broad 
enough to and do embrace it. I think, however, 
we have precedents in our reports. In Bradley v. 
CommimionerHy eft\, 2 Hum., 428, the Legislature had 
passed an act establishing the new county of Powell, 
and appointing commissioners to organize it. The 
bill was filed to enjoin the commissioners from or- 



DECEMBER TERM, 1881. 127 

Lynn v. Polk. 

ganizing tho county as directed by act of 1832. It 
was argued that one or two private individuals could 
not seek the aid of a court of chancery for the pur- 
pose of the bill. Judge Turley said: "The conven- 
tion of the State, which formed the Constitution, 
thought proper to place restrictions upon the power 
of the Legislature to form new counties, and of con- 
sequence, any attempt to do so contrary to the re- 
striction is a void exercise of the power, irhich can 
and muM be ntopped by the judwial department of the 
State. There is no other place to which an appeal 
can be made, and if the conrt>( cannot interfere^ the 
Canstitutlon, if violated, is a dead letter, --K * * 
It is the inability of courts of law to operate pros- 
pectively by prohibition for the prevention of mis- 
chief, that ha^ established u})on clear and definite 
grounds that portion of chancery jurisdiction which 
rests upon the doctrine of quia timet. It embraces 
a great variety of interests, which we need not and 
do not design to investigate here. It sufficeth for 
this case to say, that it always applies where great 
and irreparable mischief may be the consecjuence of 
the illegal action, which the common law coui^t.s can- 
not stop. * ^"^ * If the establishment of the 
•county be unauthorized, its organization ought to be 
prohibited, and this no court but one of chancery 
can do. It is submitted, whether one or two private 
individuals can seek the aid of a court of chancery for 
this purpose. AW^ think that any person aggrieved 
by the proceedings may apply for the remedy." 

In that case the bill was filed to prevent action 



128 NASHVILLE : 



Lvnn V. Polk. 



on the part of those named in the act as its execu- 
tors. Two citizena complained "that they were about 
to be aggrieved." In this case the complaint is, to 
say the least, equally as strong, and the grievance to 
be suffered equally as* great. The cases are in prin- 
ciple identical. In the one preventive relief was 
granted, then why should not the same relief be had 
in the other? 

The same principle governed and was announced 
in the cases of Cocke v. Gooch, 5 Heis., 305, decided 
in 1871, and Boiddin v. Lockhart, 1 Lea, 195, de- 
cided in 1878. 

In Ford v. Farmer, 9 Hum., 154, Bradley v. Cbm- 
misf^ionerfi was reviewed and reaffirmed. In the later 
case. Judge Tnrley said: "The act of the Legisla- 
ture is a nullity and void, and e/cei-y act done in 
pursuance of it is void, and 7ioi merely voidable, — an 
act which they have no right to pass, an authority 
which they could not delegate, — and the acts of the 
commissioners stand just as though they were self- 
constituted authorities, and the officers and others as 
usurpers without color of authority." 

It is next insisted "the suit is against the State." 

We are referred to ch. 13, sec. 2, of the Acts of 
1873, which is: "That no court in the State of 
Tennessee has, nor shall hereafter have any power, 
jurisdiction or authority to entertain any suit against 
the State, or against any officer of the State acting 
by authority of the State, with a view to reach the 
State, its treasury, funds or property." 

The court must necessarily inquire, are the defend- 



DECEMBER TERM, 1881. 129 

Ljim f. Polk. 

ants officers of the State? The act does not make 
them so by simply constituting the incumbents of the 
offices of Treasurer, Comptroller and Secretary of State 
a funding board. The selection was a means of con- 
venience and a mode of preventing vacancies by so 
arranging the appointments as to have always a full 
board, notwithstanding deaths, resignations, removals, 
etc. It would have answered the same end to have 
declared that the sheriffs or any other officers in three 
of the counties in the State should have constituted 
the board. But if we admit that a funding board 
properly created are officers of the State, then are these 
in the present case so created, and are they acting by 
^^authonty of the State f^^ The authority of the State 
can onlv exist in a commission or command issued 
or ^ivcn in conformity to the requirements of the 
Constitution. A legislature is the creature of the 
Constitution, and cannot rise above it or go beyond 
it. The Constitution is its chart and guide, and by 
it the Legislature must be governed and controlled. 
Whenever the law-making power violates the Consti- 
tution, its act is a nullity, and, being a nullity, is 
not an authority of the State. Some cases are pre- 
sented in which it is said that it can make no dif- 
ference that the law under which the officer assumes 
to act is unconstitutional, tJiat still he is an officer 
of the State, and a suit against him is a suit against 
the State. No good reason, it seems to me, is given 
for such holding, nor am I able to see how it is 
possible to give a reasonable reason for such holding. 

It can only be worked out through the assumption 
9 — VOL. 8. 



130 NASHVILLE : 



Lynn v, Polk. 



that the Legislature, the creature, is superior to the 
Constitution, the creator. Legislatures may be abol- 
ished by constitutions, but constitutions can never be 
abolished by legislatures. One may make and un- 
make, may create or destroy, enlarge or contract the 
other, while that other, dependent upon the one for 
its creation and life, must yield to it implicit obedi- 
ence and reverential deference. The officers of the 
State constituting the three departments of government 
derive all power and authority from the Constitution. 
That instrument is the master, the governmental de- 
partments the servants. The one is the work of the 
people and can only be invaded, altered or changed 
by the people. The latter are works of the Consti- 
tution through the people. By what rule does the 
servant rise above the master? There is no higher 
law than the Constitution, and if its written and sol- 
emn injunctions may be lightly overlooked, the expe- 
riment of attempting a limit or restriction to power 
is a^ failure and the Constitution *'a dead letter." 

If the mandates of the Constitution are to be ob- 
served, there is not, nor can there be such thing as an 
officer of the State acting by authority of the State 
in pursuance of an unconstitutional law. If the officer 
and his office are created by the unconstitutional ex- 
ercise of power or the exercise of power not conferred 
by the Constitution, the first is a violation of power, 
the second its usurpation. A law unconstitutional is 
void, and confers neither right nor authority. Officers 
created by it are wrongdoers whenever they attempt 
its execution. 



DECEMBER TERM, 1881. 131 

Lynn v. Polk. 

I am compelled to confess my utter incompetency 
to comprehend the reasoning upon which it has been 
holden that unconstitutional enactments may be, or must 
he treated as authority of the State. To my mind,' 
it is the climax of absurdity. 

Then, if the funding act of 1881 is unconstitu- 
tional, this suit, against officers brought into being by 
it, is not a suit against "officers of the State,^^ but is 
a suit against persons attempting to commit a wrong, 
and may be maintained. See cases already cited from 

■ 

2 Hum., 9 Hum., 5 Heis. and 1 Lea. 

The argument that the bondholders are not before 
the court, and that therefore the relief sought (other 
questions out of the way) cannot be granted, is un- 
tenable for the reason that the bondholders are as yet 
no parties to the action charged to be the purpose of 
the defendants. The act is now merely in the na- 
ture of a proposition to be offered to the bondholders 
by the defendants; there is nothing up to this time 
connecting them with the defendants or the act they 
are proposing to execute. The bill is filed to pre- 
vent the tender of a contract of settlement, and there- 
fore the bondholders are neither necessary or eveo 
proper parties. 

The next question is: Is the act called the funding 
or 100-3 statute constitutional? 

Several objections are assigned in the bill and also 
in argument of counsel. The first I will notice is, 
that section 3 of the act violates so much of art. 11, 
sec. 1 2, of the ' State Constitution as ordains : " The 
State taxes derived hereafter from polls shall be ap- 



132 NASHVILLE: 



Lynn v. Polk. 



propriated to educational purpones^ in such manner as. 
the General Assembly shall from time to time direct 
by law." This section of the act only excepts from 
'payment in coupons such taxes as are for the support 
of the common schools and for the payment of inter- 
est upon the common school fund. A reading of the 
12th section of the Constitution referred to shows very 
plainly that the common school fund is one thing and 
the educational fund to be raised from polls quite an- 
other. The common school fund is defined as a fund, 
heretofore appropriated by law by the General Assem- 
bly for the use of common schools. The educational 
fund is to be hereafter derived from polls, and may 
be more comprehensively appropriated to educational 
purposes, including not only common schools, but col- 
leges, academies, public and private schools, libraries, 
in fact every enterprise that may in its nature be 
"educational" or an "educational purpose." Besides, 
it is made the duty of the Legislature, by sec. 28 of 
art. 2 of the Constitution, to levy a poll tax of not 
less than fifty cents nor more than one dollar, and 
by sec. 1 of art. 4 it is ordained that each voter 
shall give to the judges of election satisfactory evi- 
dence that he has paid his poll tax, . without which 
his vote cannot be received. Thus we see that the 
Constitution not only creates a general educational fund, 
but guarantees its perpetual existence by making the 
elective franchise depend upon contribution to it. 

Now, if sec. 3 of the act is valid, it will divert 
this educational fund from a constitutional to a legis- 
lative appropriation, and in a very different direction 



DECEMBER TERM, 1881. 133 

Lynn v. Polk. 

td the organic intention. For the present, the poll- 
tax fund may be protected under the third section 
by virtue of sec. 962a of the Code, but if the fund- 
ing act becomes the law, the Legislature would be 
cat off from the constitutional right of repealing that 
section of the Code and applying the fund to an ed- 
ucational purpose other than common schools. It is 
only so long as it remains a common school fund 
that it is not payable in coupons. Whenever it is 
impressed by the Legislature with another than a com- 
mon school feature, it fails of the protection of ex- 
ception. It is, it seems to me, begging the question 
to suppose the present law of the Code will never be 
repealed. The Legislature has the ^ right to repeal, 
and it is not our province to impugn that right by 
suppositions. 

The question, then, is, which must succumb, the 
Constitution or the act of the Legislature? 

In this connection, it may as well be noticed that 
the exception of the third section of the act is omitted 
in the ninth, prescribing the form $md conditions of 
the compromise bonds. That form, which is as much 
a part of the act as the third section, makes the 
coupons receivable for all taxes and debts, thereby in- 
oluding the common school fund and the interest upon 
it, so that in fact the entire 12th section of article 
11 is directly violated. 

It is also objected that the Legislative enactment 
violates sec. 24 of art. 2 of the Constitution, which 
declares: ^^No money shall be drawn from the treas- 
ury but in consequence of appropriations made by 



134 NASHVILLE: 



Lvnn V. Polk. 



law; an accurate statement of the receipts and expend^ 
itures of the public money shall be attached to and 
published with the laws at the rise of each stated 
session of the General Assembly/' This clause of the 
Constitution must be considered in connection with 
sec. 3 of the same article, which is: "The legislative 
authority of the State shall be vested in a General 
Assembly, which shall consist of a Senate and House 
of Representatives, both dependent on the people, who. 
shall hold their offices for two years from the day of 
the general election." 

To rightly construe these two clauses, I will try 
to put them into one and give them such meaning 
as it seems to me was the purpose of their authors. 
I render them thus: The Legislature shall consist of 
a Senate and House of Representatives, the term of 
office as Senators and Representatives to be just two 
years from the day of the general election. At the 
end of the two years their representative capacity 
ceases, and it will be for the people to say at the 
ballot-box who shall compose the Legislature for the 
next two years. Each Legislature shall cause to be 
made and published with the laws it shall have made 
an accurate statement of the receipts and expenditures 
of the public money for the last two years before the 
rise of its session. It may have the power during 
its session to make the necessary appropriations of 
money to be drawn from the treasury in conformity 
to such law as it may pass for that purpose, the 
money so appropriated to be drawn and used for the 
benefit of the State in the vacation between one stated 



DECEMBER TEEM, 1881. 135 

Lynn v. Polk. 

session of the Legislature and the beginning of the 
next. 

It is conceded to be the general rule that one 
legislature cannot bind or commit its successor to its 
laws or policy. It was certainly the policy of the 
people in convention to so frame their organic law as 
to enable them to test the wisdom, from its results, 
of any legislative act, and to reserve to themselves, 
to be exercised through their legislatures, the right of 
repealing or modifying legislation to conform to their 
needs and wants, hence a limitation upon the terms 
of oflSce of the law-making department. It was the 
object of the convention to leave no room for confu- 
sion or dilemma because of inability to reach the treas- 
ury; and also, at the same time protect it from drain- 
age by a legislature for a longer time than its own 
existence. The unforeseen exigencies that might arise, 
the changes that might come to the State, its wants, 
its advancement, its prosperity or adversity, wete studi- 
ously left for the consideration and action of each bi- 
ennial General Assembly. The two years afford ample 
time for development and the suggestion of the neces- 
sary changes in laws, and to bring to public attention 
the demand for taxation, and its amount, and the ca- 
pacity of the people to pay it 

It seems to me clear indeed that it was the fixed 
determination in the adoption of the clauses last cited, 
that no legislature should exceed the length of its own 
life in its appropriations of public moneys, and that 
each legislature should only be credited with foresight 



136 NASHVILLE: 



Lvnn V. Polk. 



sufficient to provide for the contiDgencies of the two 
years intervening between stated sessions. 

I do not doubt the power of the Legislature of 
1881 to have provided for the payment, of the inter- 
est on the State debt for two years, and to have made 
an appropriation of money therefor. This action would 
not have interfered with its successor. 

If it be determined that it may have gone further, 
as it has attempted in the act before us, and have ap- 
propriated for ninety-nine years, the result is that each 
of about fifty consecutive legislatures must of necessity 
take, as a basis of their action in providing for the 
expenses of the State and the revenue to be collected, 
the law^ of that Legislature, and declare that an an- 
nual tax of about $810,000, is already riveted upon 
them and must be paid before the natural, necessary 
and inevitable governmental expenses; that it has pri- 
ority over every other consideration, and is the begin- 
ning point in the item of taxes to be assessed. It 
must decide that whatever may be the condition of 
the State, either for prosperity or adversity, in peace 
or war, in health or pestilence, in plenty or famine, 
still nothing can be drawn from the treasury until 
the creditor has been paid annually eight-tenths of a 
million dollars. This obstruction must be removed 
before any legislature can give its attention to the 
afiairs of State. Such contingencies were meant to 
be guarded against in the limitations upon the legis- 
lature in the length of official term and mode of 
drawing money from the treasury. 

One general assembly has as much in its favor 



DECEMBER TERM, 1881. 137 

Ljmn V. Polk. 

th^ presumption that it will do right, as another. 
The same confidence is reposed in all alike; the du- 
ties of one are precisely in all things as those of an- 
other. The constitutional powers of the law-making 
body of 1881 are in nothing different from those that 
will attach to the legislatures of ten, twenty or ninety- 
nine years hence; all are alike defined and restricted. 
It is presumed that each legislature will hereafter do 
all in its legitimate sphere to protect, defend and pre- 
serve the honor, faith and credit of the State, and 
that it will use all possible lawful means to pay or 
settle the debt of the State for which its faith and 
credit are pledged. It was to this the creditor looked 
when he became such, and I think he is in no dan- 
ger of loss by repudiation. He has not now, at all 
events, a right to demand or expect a first mortgage 
upon the life of the State, i. e., its taxes and taxing 
power. 

Another purpose of the restrictions mentioned is to 
prevent oppression and secure protection, not only 
against extravagance and corruption, but against mis- 
take. This act, if recognized, will very likely be- 
come oppressive. When we consider the uncertainty 
of the future, and the great length of time during 
which the contract is proposed to operate, not only 
as a legislative enactment, but also, in effect as an or- 
ganic one, we cannot conclude the convention meant 
to confer such latitudinal authority upon the legisla- 
ture as is here assumed. Put the question to any 
thoughtful man, would the convention, if it had been 
proposed, have given to the legislature the authority 



138 NASHVILLE : 



Lvnn r. Polk. 



to fix by statute a specified tax upon the people for 
a long term of years to pay interest upon the public 
debt? The answer would be promptly, no. Ask 
further, why not? The answer is, because that con- 
vention was framing a chart for the safety and good 
government of the people of the State, and would not 
have been willing to have risked so much to the 
frail judgment of legislators, to say nothing of their 
exposures to temptation to dishonesty. To have grant- 
ed the power, would have been against the plain and 
obvious dictates of reason. In the case of Bank of 
the Stat'C v. Cooper, 2 Yer., 603, Judge Green says: 
"It does not follow that because there may be no 
restriction in the Constitution prohibiting a particular 
act of the legislature, that such act is therefore con- 
stitutional. Some acts, though not expressly forbidden, 
may be against the plain and obvious dictates of rea- 
son. The common law, saith Lord Coke, adjudgeth 
a statute so far void." I think the principle sound, 
and, in the absence of constitutional restriction, would 
apply it in this case. 

Another and the most serious objection to the act 
is, the legislature, being the financial agent of the State 
and having no authoritv to delegate that agency, has 
in fact assumed to do so by this legislation. If the 
proposal to compromise is held good and shall be ac- 
cepted by the bondholders, it will then be out of the 
power of any legislature to at all interfere with the 
law under any circumstances. The provision that the 
coupons shall be receivable for taxes and all debts 
due the State, becomes a contract. The language of 



DECEMBER TERM, 1881; 139 

Lynn v. Polk. 

the provision gives to the holder the right to employ 
such means and legal process as will compel compli- 
ance, and so far, the financial agency lyill be trans- 
ferred to the creditors and through them to the courts, 
thus taking the management and control of the treas- 
ury out of the hands of the legislature and placing 
them beyond the protection of the courts of the State. 
The moment the contract is executed it becomes the 
subject of Federal jurisdiction, and all the State courts 
are subordinate jurisdictions, and whatever may be the 
rulings of the State courts, and wherever suit may be 
instituted for the enforcement of the contract, the Su- 
preme Court of the United States will have the final, 
and of course conclusive, jurisdiction; and its decisions 
will be binding upon the State courts. 

This will be a surrender of sovereignty. The State 
will no longer be its own guardian, with power to 
make provision for its support and existence, but will 
be the ward of the Federal Government for ninety- 
nine years, its estate to be administered at the beck 
and nod of the bondholder, — a centralization of the 
worst form. 

A further consequence of the act will be a surren- 
der by the State of its inherent, as well as constitu- 
tional right of determining when and in what court 
and in what form it may be sued, or of withholding 
or withdrawing its liability to suit at its pleasure. 

It is the right and duty of the State to hold its 
own purse strings, to be its own financial agent, to 
provide for its own necessities, and to maintain its 
own sovereignty. These rights and duties must be 



140 NASHVILLE: 



L3mii «. Polk. 



exercised and performed at any cost and under all 
circumstances. If the act before us is declared to be 
constitutional^ they are all gone, by an absolute trans- 
fer to the bondholder, to be administered in a foreign 
court. 

I think the act unconstitutional and void, and that 
the injunction was properly granted and should be 
made perpetual. 

By this opinion I am not to be understood as 
favoring repudiation. I want the State to be honest. 

I express no opinion on the question of bribery, 
because I think the constitutional objection to the stat* 
ute the primary one; that being resolved adversely 
to the law, is conclusive of the whole case. I think 
the settlement of one question controlling and over* 
whelming all others, is as far as a court should go 
in any case. It is always time enough to solve legal 
problems when they are material to results. 



DECEMBER TERM, 1881. 141 



Lvnn V. Polk. 



Fbeemajj^, J., said: 

On the 5th day of April, 1881, the Legislature 
passed a bill entitled "An act to compromise and settle 
the bonded indebtedness of the State of Tennessee.'^ 
Its provisions, so far as material, may be gathered 
from the following statement, and citations from the 
act: 

It provided for funding the bonded indebtedness 
of the State, with past due interest, up to July, 
1881, by new bonds, to be issued through the agency 
of what is called a " Funding Board,'* bearing date 
July 1, 1881. These bonds are to bear interest at 
the rate of three per cent, per annum, payable semi- 
annually in the city of New York, coupons for the 
interest to be attached to each bond. 

By the third section of the act it is provided, 
"That the coupons on said compromise bonds, on and 
after their maturity, shall be receivable in payment for 
all taxes and debts due the State, except for taxes for 
the support of the common schools and for the pay- 
ment of the interest upon the connnon school fund, 
and said coupons shall show upon their face that they 
are so receivable." 

By sec. 5. "The Secretary of State, Comptroller 
and State Treasurer, shall constitute a board, to be des- 
ignated a iunding board, any two of which shall con- 
stitute a quorum for the transaction of any and all 
business for which said board was created. Said board 



142 NASHVILLE : 



Lvnn V, Polk. 



may sit or hold meetings for the transaction of the 
business created by this act^ at such times and places 
as they may deem wise and proper, to enable holders 
of Tennessee bonds and coupons to fund the same un- 
der the provisions of this act." 

This board by next section is, among other things, 
authorized, when any legally issued bonds of the State 
or coupons are presented to it, to examine and audit 
the same, and if found genuine, prepare compromise 
bonds, as directed, and deliver them to holders, taking 
up the old bonds. 

There are other provisions to effectuate the pur- 
jx>ses of the act, that need not now be referred to, 
except to say that the form and language of the bond 
is given in specific terms in the 9th section of the 
act, an4 for some reason, the exceptions in the 3d sec. 
of the act are not included in it or mentioned. Its 
language is : " The • coupons of the bonds, as they be- 
come due, are receivable for all taxes and debts due 
the State of Tennessee." The fact is added, that the 
bond and coupon are issued in pursuance of the act, 
giving its title and date. It is seen, that taxes for 
the support of the common schools, or for payment of 
interest on the common school fund, are not excluded 
from payment in these coupons by the terms of the 
contract on its face. 

The above, with such references to the act as may 
be necessary, will serve to present the questions raised 
by the bill in this case, so far as they grow dut of 
the provisions of the enactment under cousideration. 

On the 25th of May, 1881, complainants, number- 



DECEMBER TERM, 1881. 143 

' ■ ■ ■■ , 

Lvnn V. Polk. 

ing upwards of thirty persons, citizens of various coun- 
ties of the State, filed the bill in this case, against 
defendants by name, who are respectively, for the time 
being, the Secretary of the State, Comptroller of the 
Treasury, and the Treasurer, and as such constitute 
the "Funding Board," "created" and provided for by 
the act, praying for an injunction inhibiting said par- 
ties composing said board from auditing the bonds of 
the State, or issuing the compromise bonds and cou- 
pons as authorized. 

I shall not attempt to state in detail the large 
amount of matters found in the bill, much of which 
I think irrelevant and superfluous, and to say the least 
of it, not necessary to present the questions raised for 
decision by the court. It suffices to say, that the 
injunctive power of the court is invoked on the ground 
that the act of 1881 is uuconstitutional, for reasons 
given at much length in the bill, and also, that the 
authority to issue the new bonds, and the whole scheme 
for funding the past due indebtedness of the State was 
procured by fraud, and by bribing members of the 
Legislature. The details constituting these charges will 
be noticed in their order, when the questions are here- 
after discussed. 

This case is one of the highest gravity ever sub- 
mitted to this court, seldom equalled in any court, 
both by reason of the large amount involved or to 
be affected by its decision, as well as the weighty 
questions of law, constitutional and general, presented 
for solution. It has been argued at unusual length, 
and with an ability worthy of its importance. Its dis- 



144 NASHVILLE: 



Lvnn V. Polk. 



cussion has brought into play the best talent of the 
bar of our State, and they have shown themselves 
worthy of the high reputation borne by them, by the 
learning, force and eloquence with which the case haa 
been urged upon the attention of the court, on each 
side of the contest. It now becomes the duty of this 
court to investigate and settle the issues made and 
debated so ably before us. 

In doing so, we have felt the gravity of the duty 
imposed, and have given to all the questions presented, 
our most earnest considerstion. With the policy or 
wisdom of the measure before us we have no concern, 
as a court. With the party or political combinations 
or accretions that may have gathered around this or 
any other measure, as Judges, we have neither sym- 
pathy or the opposite. We shut our eyes to every- 
thing except the simple question, What is the law of 
the case? When that is seen, as we understand it, 
it must ';be fearlessly announced, in the calm spirit 
that belongs to our high places. Consideration of con^ 
sequences is not for us — only duty is to be known, 
and fiiithfully done. Where it leads, is our pathway — 
its voice is to us the imperative, which we cannot 
disobey, and which we would not disobey if we could. 

Owing to the importance and weight of this case, 
contrary to our usual practice, it has been deemed 
proper that each Judge, who may choose, shall give 
his own opinion, and the reasons leading to his own 
conclusions. I now proceed to the discussion of the 
questions deemed material to the decision of the case 
as it stands before us. 



DECEMBER TERM, 1881. 145 



Lvnn V, Jfolk. 



Several questions, that may be called preliminary 
to the main issues raised by the bill, are presented, 
and urged with great earnestness by counsel for re- 
spondents. It is proper to dispose of these first. 
To do 80, a short statement of the proceedings in the 
court below must be made. 

In accord with our practice, the bill was presented 
to one of the circuit judges for his fiat authorizing a 
preliminary injunction to be issued. This was ob- 
tained, and the injunction issued in accord therewith. 
Thereupon, after service of process, the defendants reg- 
ularly appeared in the chancery court at Nashville, 
where the bill had been filed, and moved the dissolu- 
tion of the injunction, basing this motion alone on the 
face of the bill and charges therein contained. From 
these it was maintained, the motion to dlasolve should 
be allowed, as the decree of the chancellor reciteF, for 
want of jurisdiction, and for want of equity on the 
face of the bill. These are the specific points pre- 
sented as the basis for the motion to dissolve the 
injunction — not to dismiss the bill. After argument 
by counsel on both sides, the decree states : " The 
court being of opinion that there is no equity upon 
the face of the bill, of its own motion, it is ordered,, 
adjudged and decreed, that said bill be dismissed with 
with costs, etc." From which decree the complaiu- 
ants appeal to this court. 

On this statement of facts, in strictness it might 

be said, that the only question before us is, whether 

it is such a case as authorized the chancellor, without 

a motion to dismiss for want of equity, or any de- 
10— VOL. 8. 



146 NASHVILLE: 



Lvnn V. Polk. 



murrer to the bill pointing out objections, on his own 
motion, to dismiss, because there was no equity what- 
ever in the matters stated. The rule in such case 
has been repeatedly stated by this court, perhaps 
as well in the case of Thompson v. Paul, 8 Hum., 
116-117, as in any other: "If from the face of the 
bill it appears the court has no jurisdiction of the 
case, or if it contain ' no matter of equity whatever 
the chancellor may properly dismiss on mere motion 
(that is his own motion) at the appearance term or 
at any subsequent stage of the proceeding." It is 
added, that, where a case is made for equitable relief, 
but it is defectively stated, the chancellor cannot thus 
disrAiss; or, to use the language of Judge Cooper, in 
Quinn v. Leake, 1 Tenn. Ch., 70: "When admitting 
all the facts stated in the bill, whether well or de- 
fectively pleaded, the complainant is entitled to no 
relief." See, also, 3 Head, 366; 9 Heis., 270. 

It seems clear, on principle, that the only question 
before us fairly is as to the sufficiency of the matter 
of the bill, either w^ell or defectively pleaded, to en- 
title complainants to any relief whatever — " the bill 
-standing," as said by this court, " as if all its allega- 
tions are to be taken as true" — that is, all its alle- 
gation of facts : 9 Heis., 270. 

In this view it might well be held, that unless 
the court in this state of case could say, that under 
no circumstances a decree could be pronounced against 
these parties on the facts alleged, or that it had no 
power to make a decree against the parties before it, 
all the facts being admitted or proven as stated, the 



'^ 



DIJCEMBER TERM, 1881. 147 

Lvnn r. Polk. 

action of the chancellor would be erroneous and ought 
to be reversed. 

The question so much pressed on our consideration, - 
that this is a suit against the State^ and is^ therefore, 
one that cannot be prosecuted, would be excluded from 
our consideration in this view, unless it could be shown 
that under no circumstances could the court hear and 
determine a case w^here the State, or her officers — for 
it is assumed defendants are officers in this sense, in 
argument — are defendants. If the power to hear and 
decide in such a case is forbidden absolutely by law, 
then as no decree could be rendered by the court for 
want of jurisdiction, it might be that the chancellor 
could even on this ground, consistent with the prin- 
ciples we have referred to, dismiss the bill on his own 
motion. But certainly not if the objection is one in 
the nature of a personal privilege, which had not been 
claimed by the State or parties representing her, and 
authorized to act for her. 

The act of 1873 is relied on in support of the 
position, that the suit is forbidden or cannot be main- 
tained. We refer to it now for the purpose, how- 
ever, of seeing whether it forbids all action by the 
court, or only gives the right, at her option, to in- 
terpose the objection by the State. 

The language of the act is : " No court in the 
State of Tennessee has, nor shall hereafter have, any 
power, jurisdiction or authority to entertain any suit 
against the State, or against any officer of the State^ 
acting by authority of the State, with a view to reach 
the State, its - treasury, funds or pio})erty, and all such 



148 NASHVILLE : 



Lvnii V. Polk. 



suits now pending, or hereafter brought, shall be dis- 
missed , as to the State or such officers, on motion, 
plea, or demurrer of (he law officer of the State, or 
counsel employed by the State" If this act had stopped 
at the first clause, its language would have forbidden 
all right on the part of the court to exercise juris- 
diction in the cases specified absolutely, as far as the 
Legislature had the power so to do. But when it is 
added, how advantage shall be taken of the exemption, 
and who shall interpose such objection, it is clear, it 
is an optional defense. It requires action on the part 
of the State, active interposition on the part of her 
law officer or counsel employed for the State, by mo- 
tion, plea, or demurrer. These steps are not such as 
belong to the province of the court. To make a 
motion for the law officer of the State, or counsel 
employed by the State, file a plea for him, or a de- 
murrer, would be a most incongruous proceeding by a 
court — one unheard of in any system of practice known 
to us. The language of the statute excludes such a 
course. The nature of the defense equally does so — 
it being one in the nature of a personal privilege, an 
exemption, which the State ought in reason to have 
as much freedom to waive, as any private party. 

The uniform practice, and practical construction of 
the statute since its passage, in cases of suits against 
the Comptroller to compel issuance of warrants or 
claims disputed, is most persuasive evidence in favor 
of this view. Numerous cases of this kind have been 
before this court. See Burch, Comptroller v. £0^- 
ter, 12 Heis., 601 i Akers & Union and American Pvb. 



DECEMBER TERM, 1881. 149 

Lynn v. Polk. 

Co. V. Burchy Comptroller, Ibid, 607 ; MarchAanka v. 
Gaines, Comptroller, MS., Nashville, 188.0, and other 
v/ttses* 

Most of these cases were represented by the then 
attorney general, Col. Heiskell, who is said to have 
been the author of the act of 1873, and who knew 
its purpose, if any one did. The same practice has 
continued under the present learned attorney general, 
as we know. See Uhl v. Gaines, 4 Lea, 352. This 
practice, and the action of this court in those cases, 
can only stand on the ground we have stated. This 
court could not gravely hear cases, as a mere advi- 
sory body, nor has it power so to do. 

No motion being made, either by the State or 
counsel employed by the State, to dismiss on this ac- 
count, nor plea, or demurrer filed (nor can we know 
that any will ever be made by the State, nor even 
by the defendants to the case), we cannot treat the 
case as if this had been done — the case standing here 
on the issues before the court below, and the record 
then made. To do so, would be to make a case, 
not review what has been done. The result would 
be that the record, on this point, raises fairly no 
question, except the single one, whether the chancellor 
on his own motion could dismiss the bill, because 
the State was sued through the officers forbidden 
to be sued by the statute. He does not assume to 
have acted on this question, but on the general ques- 
tion of *'no equity on the face of the bill;'' and as 
I think he had no power to raise the question o^ his 
own motion, this question might well be settled on 



150 NASHVILLE: 



Lynn v. Polk. 



this ground. I do not think it is before us for ad- 
judication. The premise in fact has to be made in, 
the record, where it does not exist, in order to raise 
the question now for our consideration. This we have 
no authority to do. 

But I think proper not only to express the above 
opinion on this point, but in view of the dignity of 
this case, and the earnestness with which the question 
has been urged, to add my views on the precise ques- 
tion made. Is this a suit against the State in any 
legitimate sense? Is it a suit against an oflBcer, by 
any sound rule of law established, or under our con- 
stitution, that can be defeated on these grounds? By 
sec. 17 of our bill of rights, it is declared: "That 
all courts shall be open ; and every man for any in- 
jury done him in his lands, goods, person or reputa- 
tation, shall have remedy by due course of law, and 
right and justice administered without sale, denial or 
delay." The exceeding breadth of these words, liter- 
ally at any rate, would certainly have included an 
injury done by the State. But the convention chose 
to prescribe a limitation or qualification to the lan- 
guage, and added, suits may be brought against the 
State, in such manner and in such courts as the Leg- 
islature may by law direct. It could not be ques- 
tioned, if the last words had not been added, that 
even the right to sue the State would have been 
granted absolutely, in all the cases where a remedy 
had been affirmed in the fillet part of the clause. 
But the convention chose to qualify this right to sue- 
the State by leaving the manner, and the courts in 



DECEMBER TERM, 1881. 151 



Lvnn r. Polk. 



which such suits should be brought, to the legislative 
department. Consequently, it has been held and prac- 
ticed . on in this State, that until the Legislature acts, 
the right to sue the State under this section cannot 
be effectual for want of this action. I approve thi& 
construction on this point. 

But I think it clear, this language of the bill of 
rights does not allow the absolute exemption from suit, 
by the Legislature, of any person or officer, simply as 
such, but only the State, and may be included under 
that term. From this it results that whenever the 
question is made as a defense to a suit commenced, 
that the State cannot be sued, and her exemption 
from suit interposed to defend the suit, the inquiry is, 
whether in the sense of this clause of the constitution,, 
the State is sued in any proper sense, and if not, all 
others may be, if they have wronged the citizen or 
are about to do so, in such manner as will meet the 
requirements of a court of equity in such cases. He 
must have redress for that wrong "by due course of 
law, and right and justice administered without sale, 
denial or delay.^' The act of 1873, sec. 2, cited above, 
even as to "any officer of the State, acting by au- 
thority of the State,'' etc., requires, as we have shown, 
the objection to be made, and the defense to be in- 
terposed, by motion, plea or demurrer of the law 
officer of the State or counsel employed foi' the State. 
I might dismiss this question here, as no such motion, 
plea or demurrer appears in the record, either by the 
law officer of the State, or counsel employed for the 
State, nor indeed by any one else, nor is the State 



1 52 NASHVILLE : 



Lvnn t'. Polk. 



represented by counsel, as far as we know, at all in 
the contention before us. 

But is this suit "against the State or any officer 
of the State, acting by authority of the State, with 
a view to reach the State, its treasury, funds or prop- 
erty," within the language of the act of 1873? On 
this question I cannot entertain a doubt. The de- 
fendants are in no legitimate sense of the term, cer- 
tainly not within the intent and meaning of this 
statute, officers of the State at all. It is the funding 
board that is sued, in the only way it could be done, 
that is, by making the persons composing it defend- 
ants, it not being incorporated. That board, as a legal 
entity is, to use the language of the statute, " created " 
by the act. It is, to continue the use of the lan- 
guage of the act, '* constituted," or made up, of the 
Secretary of the State, Comptroller of the Treasury and 
State Treasurer, and designated a Funding Board." 
That is, the men who shall for the time being fill 
these offices are designated, as the constituent elements, 
making up the unit created by the act, designated a 
funding board. This unit, so constituted, acts as one, 
any two of them constituting a quorum for the trans- 
action of the business in hand. I cannot see how 
this legal thing thus created can be conceived of as 
an officer of the State. It certainly is not the comp- 
troller, nor treasurer, nor secretary of the State, for 
it is inconceivable that the three men filling these 
offices should be combined into one, and be either 
officer. The acts of the board are no more the acts 
of these officers as such, than would be the case if 



. DECEMBER TERM, 1881. 163 

Lynn r. Polk. 

one justice of the peace, one constable, and the sheriff 
of Davidson county had constituted the board, would 
have made the act of the board the official act of 
either of these officers. This unit is constituted of 
these officers, but itself is no officer of the State, and 
is not so designated in the act. In fact it is but a 
funding board — nothing more. It is no more an offi- 
cer or its constituent elements in this respect officers 
of the State, than were the commissioners appointed 
by the Legislature to lay off the county of Powell, 
in the case of Bradley v. CommisHionerSf 2 Hum., 428, 
officers of the State, or in any other case of the kind, 
where such commissioners have been so appointed by 
act of the Legislature. The idea that a funding board, 
constituted of three men, is an officer of the State, in 
the language of the act of 1873, is inconceivable. It 
is not an officer of the State, and cannot be. 

The board is simply three parties acting as such, 
and claiming to be authorized to fund the past due 
indebtedness of the State, and the right to do so, by 
authority of an enactment of the Legislature. This 
is their letter of authority, and under this they justify, 
and claim the right to do what they propose to do. 
The question is, whether what is authorized to be 
done, is a valid, legally authorized act, or is it in 
violation of the constitution, and a nullity. If the 
latter, the board has no authority to issue these bonds, 
and may be restrained from doing so, by any party 
liable to be injuriously affected by their act. A citi- 
zen, a taxpayer, is certainly so liable, at any rate has 
as direct interest in the question as any other party. 



154 NASHVILLE: 



Lvnn t'. Polk. 



as the effect of what is done is prima facie, and it 
may be certainly, to fix a charge upon his property 
for the period of ninety-nine years. Where such a 
burden is proposed to be fixed on all the people of 
the State, under such circumstances, surely no court 
of equity could hesitate, if the act is done in violatioa 
of the constitution, to give preventive relief; quia timet, 
and forbid it being done. 

It is certain, on the face of the bill the State is 
not a party. I think it equally certain that no officer 
of the State as such is a party — only the funding 
board. It claims to act under the authority of what 
purports to be an act of the Legislature. If that act 
is valid, then the authority is complete — if not, there 
is no authority for the action of the board, and they 
cannot represent the State, even if the board was an 
officer of the State. It is correctly said bv the Su- 
preme Court of the United States, in the case of 
Board of Liquidation v. MoComb, 11 Otto, 541: 
" If an officer pletid* the authority of an unconstitu- 
tional law for the no n- performance or violation of his 
duty, it will not prevent the compulsory process of 
mandamus. An unconstitutional law will be treated 
as null and void." See also, 9 Wall., 859; 16 Wall., 
220. This principle certainly applies with full force 
to such a board as the one now before us. 

To say that a simple enactment of the Legislature 
is to be conclusive evidence of authority, though it 
be unconstitutionnl and void, and that no court could 
question it, is to make a valid and void enactment 
of equal force, and to authorize arbitrary power on the 



DECEMBER TERM, 1881. 15& 

Lynn t'. Polk. 

part of the Legislature, with no check upon that body 
whatever. 

It is no intrusion by the court upon the province 
or sphere of the Legislature. It is their duty and 
right to enact; but ours to judge whether the act is 
valid, or beyond the powers conferred on that body, 
whenever that is fairly presented for our adjudicafion. 
The fact, that the Governor, nor any other party, as 
the result of holding this enactment invalid, (if it should 
so be found), would not and could not legally pro- 
ceed to do what they might otherwise do, is nothing 
more than results in any case where a law is declared 
unconstitutional. It is then by the proper authority 
adjudged to be no law, and consequently no authority 
for any action by any one under it. 

We had a case lately before us at Knoxville, where 
the validity of the law authorizing assessment and val- 
uation of the property of the railroads of the State 
was in issue. The Governor by the statute appointed 
the assessors. This had been done for several years, 
but after this period, the question came before us, and 
the law was held unconstitutional and void. No one 
certainly ever thought that this was an invasion of 
the right of the Governor to appoint the board of 
assessors, nor of the province of the Legislature, when 
the law was held unconstitutional. The Governor, 
however, will appoint no more railroad assessors, simply 
because it has been settled by the proper authority 
that the acts they were to perform are in violation of 
the constitution, and the Legislature could confer no 
authority to do an act in violation of the constitution. 



156 NASHVILLE: 



Lvnit V. Polk. 



nor the Governor be bound, or have the right, to 
execute an unconstitutional enactment, when so de- 
clared bv this court. I have no doubt of the cor- 
rectness of the conclusion reached on this question. 

I but add here, that the contention, that this bill 
cannot be sustained because the State should be a party, 
and is not, I do not think well taken, as it goes on 
the proposition that in every case where a party seeks 
to act by virtue of an enactment of the Legislature, 
the State must be a party before the validity of the 
law can be adjudicated. I take it, this proposition 
would not be seriously insisted on. I need not 
discuss it. 

The question of whether these parties as taxpayers 
and citizens of the State, can file a bill to restrain 
the issue of these bonds, if issued in violation of the 
constitution, I shall dispose of shortly. I cannot doubt 
the right to bring such suit, under settled principles 
in this State. 

The pinciple on which the jurisdiction of the court 
of chancery rests in a case like this, is stated by 
Judge Turley in the case of Bradley v. Oommissionera, 
etc., 2 Hum., 432-3, so clearly that we need but use 
his language to find all that may be rendered on 
this question. After referring to the incompleteness 
of legal remedies, he says : " It is this inability of 
courts of law to operate prospectively by prohibition, 

* 

for the prevention of mischief, that has established 
upon clear and definite grounds that portion of chan- 
cery jurisdiction which rests on the doctrine of quia 
timet. It embraces a great variety of interests, which 



DECEMBER TERM, 1881. 157 

Lynn v. Polk. 

we need not investigate here. ' It sufficetb for this 
case to say, that it always applies where great and 
irreparable mischief may be the consequence of illegal 
action, which the common law courts, from their mode 
of proceeding, cannot stay; such as we think this one 
to be. If the establishment of the county,'^ he adds,^ 
'^be unauthorized, the organization ought to be 
prohibited, and this no court but one of chancery 
can do." 

The bill in that case was filed by two citizens 
against commissioners appointed by an act of the Leg- 
islature to lay off and organize a new county, and in 
pursuance of this authority they were proceeding to 
perform the duty required of them. The bill, among 
other things, stood on the ground that the new county 
would not have the number of square miles required 
by the constitution. On this ground, as clearly made 
out by the proof, the court put its decision. The 
new county was to be made up of fractions taken 
from three other counties, one of which was the county 
of Hawkins. The bill was filed solely by two citizens 
of Hawkins to enjoin the organization of the county — 
the complainants residing in the portion of Hawkins 
that would go into the new county. The sole ground 
in the bill for its relief was that the act to he done 
and performed by the action of the commissioners, 
would be a violation of the constitution ; and on this 
ground the court placed the jurisdiction, or right on 
their part to file the bill, saying: "It is submitted 
whether one or two private individuals can seek the 
aid of a court of chancery for this purpose. We think 



158 NASHVILLE: 



Lvnn r. Polk. 



that any person aggrieved by the proceeding may ap- 
ply for the remedy." 

This is a strong case in another aspect of it. It 
is a legislative function undisputed^ to lay off new 
counties. The commissioners were but the appointed 
agents of the legislative department for carrying out 
what the Legislalure had appointed — had expressed as 
its will. But that expression or act was in violation 
of the constitution ; and this court, at that early day — 
forty years ago — unhesitatingly gave the remedy, in 
favor of the citizen whose right was only to be affected 
to the extent of changing the county in which he 
would live, by the organization of a new one. It 
was not even sought to sustain the jurisdiction by 
pointing out, as has jsince been done, how his burdens 
might be increased by new taxes for court-house and 
public buildings, and in other ways; but the jurisdic- 
tion of the court was established on the broad ground 
that the constitution was about to be violated, and 
the citizen's right would be thereby so much affected, 
as that he might ask a court of chancery to prevent 
it. The court said the act was in violation of the 
constitution, '* and, as a consequence, any attempt to 
organize the county contrary to its restrictions was a 
void exercise of power which can and must be stopped 
by the judicial department of the State. There is no 
other place to which an appeal can be made, and if 
courts cannot interfere, the constitution, it violated, is 
a dead letter." 

Since that case, the jurisdiction then established has 
been exercised unhesitatingly in all like cases — indeed 



DECEMBER TERM, 1881. 159 

Lynn v, Polk. 

it has become one of the settled principles of our State 
jurisprudence; so embedded in it as not to be shaken; 
so consonant as I think with sound principle; so in 
accord with the genius and spirit of our institutions; 
giving such a guaranty for the security of the people 
from aggression or infringement of their constitution 
on the part of the Legislature, so long as their judi- 
tjiary are to be trusted, that I would sanctify it, and 
preserve it for all time. I may add, when the ju- 
diciary of the State cannot be trusted, or fails to 
restrain unconstitutional action on the part of the 
Legislature, our free institutions are fearfully imperilled. 
In this high place, above passions, independent of the 
drifting waves of popular sentiment or prejudice, should 
be found the safeguard of our liberties. It has been 
so in the past. I trust it may always be so found 
in the future. No one should fear to submit the 
constitutionality of a law to the arbitrament of the 
only department which is or can be organized, with 
peculiar adaptations to perform this high duty. It 
was truly and wisely said by Judge Turley : *^ There 
is no other place to which an appeal can be made^ 
and if courts cannot interfere, the constitution is a 
clead letter." 

The opposite theory, and the one maintained in 
argument, that the act of the Let;islature is conclusive 
authority for the act of this board, would, if carried 
out, make the Legislature independent of the constitu- 
tion, with no clieck upon their action whatever. Sup- 
pose an enactment sliould authorize the property of 
the citizen to be taken for the use j)f the State under 



160 NASHVILLE : 



Lynn v, Polk. 



the right of eminent domain^ with no provision for 
compensation, and appoint a board to take possession. 
Would any man hesitate to say a court of chancer}' 
would enjoin these commissioners or board from doing 
it? Would an act of the Legislature be held con- 
clusive authority in such a case? Assuredly not. 
Why? Because it would be in violation of the con- 
stitution. It is not seen that there could be any 
difference in principle, between that case and this, as- 
suming the act to be unconstitutional. 

We need but notice an argument pressed probably 
in another connection, but one that may well be met 
here. It is, that if the law is repealable, this is the 
remedy; and if unconstitutional, the act will be void — 
that is, the contract proposed to be made. The feet 
that a law is repealable is no remedy against its ex- 
ecution for the citizen, nor is repeal a remedy at all 
when applied to courts, for no man can enforce it; and 
we may add, the Legislature may repeal a constitu- 
tional law, as well as an unconstitutional enactment. 
But this has no relation to what a court shall do 
when the act is called in question in that forum. 

As to the ulterior remedy of the taxpayer, or the 
State, after the contract is completed, we need not say 
how that is. It may not be effective, but that is 
not the question. No court in all the future can give 
the complete and adequate remedy now sought, by 
preventing the mischief, if it be a wrong ; and the 
question whether it will be a wrong, is the very question 
on which the remedy rests. If there is a wrong, pre- 
vention is better than remedial relief — meets the whole 



DECEMBER TERM, 1881. 161 

Lvnn V. Polk. 

case at once; while as to the taxpayer, Avhose property 
is to be charged with the burden of meeting the lia- 
bility to be created, he would have to meet it, if at 
all, subject at least to many embarrassments not now 
found, and by each for himself resisting the payment 
of the tax. This might be the source of infinite 
litigation, as we see the taxes at present are not as- 
sessed, so as to levy a special tax for the payment 
of this debt. We hardly see how he could meet the 
case on the ground suggested. Be this as it may, 
I am sure the relief now sought is the proper 
remedy. 

It was suggested in argument, that the taxpayer 
was not injured, because the old debt, which this was 
to fund, was the s:mie in amount, and the interest at 
six per cent., while this Avas to bear but three. But 
the answer is, it is not whether he owes another valid 
debt, heavier than this, but whether the specific lia- 
bility now proposed to be created is a valid one. 
Whether the taxpayer might not have misunderstood 
what is best for him, is not important. Tliat is for 
him to say. But that he has the right to resist the 
wrong in the particular form attempted, if a wrong, 
regardless of its prudentials, is to me a proposition 
not admitting of doubt. 

The only other matter I notice in this connection 
is, that the State can, and ought to bring tlie suit. 
I only answer, that mu' or may not be; but whether 
true or not, it cannot affect the right of the party 
who in fact has to pay the money — to furnish it, ei- 
ther voluntarily or have it exacted from him, before 

11 — VOT.. 8. 



162 NASHVILLE: 



Lvnn t'. Polk. 



the State can disburse it — to assert his own right and 
resist his own threatened wrong. 

I now proceed to the main question on the merits 
of the bill. On this I premise, that the question is 
not whether the State of Tennessee may not fund her 
past due indebtedness — that is taken for granted; nor 
whether she may not provide the means for paying 
the bonds given. The real question is: Whether the 
precise bonds this funding board, the defendants, are 
proposing to issue, creating the precise liability, pro- 
vided for in the act of April, 1881, in the form pro- 
posed, are authorized by the Constitution, or can be 
constitutionally and legally issued ? Can this proposed 
contract be made, with all its liabilities and incidents? 
Shall it be consummated, not another? Is it forbid* 
den by the Constitution fairly construed, either ex- 
pressly, or by fair and necessary implication? 

To this grave question I now address myself. I 
shall endeavor to discuss it in view of its gravity 
and importance. I think proper to say, that I can- 
not fully sympathize with the somewhat conventional 
tone usually adopted by courts in approaching the dis-- 
cussion of a question involving the constitutionality of 
an act of the Legislature. It seems to be assumed 
that this department of the government treads on 
ground where, for some reason, it must walk with 
bated breath and a sense of awe in the presence of 
the naighty power of a co-ordinate department, that 
does not accord with my view of the sense of perfect 
freedom with which a judge should perform his high 
functions. It has even been sometimes said that, if 



DECEMBER TERM, 1881. 163 

Lvnn V. Polk. 

possible^ we must reconcile the act with the Constitu- 
tion, — that we must hesitate before pronouncing an act 
of the representatives of the sovereign power void. 
To all this I respectfully demur. In declaring a law 
unconstitutional, the courts as much represent the sov- 
ereign will of the people as the other department in 
enacting a law. The duty to do so is one confided 
to them, and imposed in no uncertain terms, — fastened 
bj the solemnities of an oath, and sanctified, in the 
United States, by all the traditions and practice of 
these tribunals. As the peculiarity, and grand dis- 
tinguishing feature of our American constitutional sys- 
tem, — one that gives more of stability to constitutional 
freedoms and guaranties than all others; one so essen- 
tial to the preservation, uuimpaired, of the essential 
rights of a free people, — I hold it should assert itself 
in the true spirit of independence, and the high dig- 
nity which the consciousness of discharging so respon- 
sible a trust should ever impart to him who does 
duty at the command of, and in obedience to, the em- 
bodied will of a free and high-spirited people, jealous 
of their liberties. The sacred trust reposed, should 
inspire the judge with the deepest sense of responsi- 
bility, but no fear; and in this, the true spirit of a 
manhood born of the free institutions he is to sacredly 
guard, he should discharge this duty as he does every 
other, looking only to the right, and daring to do, 
without shrinking, all it may demand. To assume 
that I, as a judge, must do this work under the feel- 
ing that I must not do it if I can avoid it — must 
let the enactment, contrary to the Constitution, stand. 



164 NASHVILLE : 



Lvnn V. Polk. 



if I can find any means by which it can be done, — 
to me seems antagonistic to the spirit indicated, and 
what I ought not to feel. The Legislature, in en- 
acting a measure, do what is deemed their duty in 
their sphere. When that act comes in question be- 
fore me as a judge, I am simply to do mine. It is 
passed with a knowledge of the fact that courts are 
to decide on its validity. It comes to these courts 
with this inherent element fixed by the Constitution, 
and I cannot feel the slightest hesitancy in doing it. 
That duty is not to seek, or even desire to find, how 
not io do it; but frankly, fearlessly and truly to do 
my duty, and thus meet the responsibilities of my 
high place. In this free spirit, yet with a most real 
sense of the grave responsibility upon me, I shall at- 
tempt to discharge the duty of the hour. 

The enactment before us comes in the form of a 
law, and must so be treated. Its contents must be 
fairly considered and weighed, its purpose, seen and 
understood ; and if these are in violation of the su- 
preme law of the land, then it is stripped of its form 
and becomes a nullity — is void. It is my imperative 
duty so to declare, and if I so find, it shall be done. 
I can consider no consequences; care, as a judge, 
nothing for what may be said or thought by others. 
The party accretions and combinations, as I have said, 
if such there be, that have gathered around this ques- 
tion, are matters with which I have no concern. 
With the policy, or impolicy of the measure, I have 
nothing to do. The only question is. Does it accord 
with, or does it violate the Constitution I am here 



DECEMBER TERM, 1881. 165 

Lynn v. Polk. 

to maintain inviolate? If it does, it must go down, 
and I must say so, though I might as a citizen have 
approved. To the test of tlie Constitution, fairly ex- 
pounded in alL its grants and all its limitations, in 
view of all it contains bearing on the questions at 
issue, it must be brought; and if it bears it, well; 
if not, ill. To this all must bow, or a constitution 
is an idle form, a lifeless corpse, that had as well be 
buried out of sight, as an encumbrance and fetter on 
the free action of the legislative department. 

In the discussion of this question, I am compelled 
to deal with the elemental principles that enter into 
and animate the Constitution, which embodies the pow- 
ers conferred by the people on the law-making depart- 
ment of their government. The nature of the thing 
known as a constitution, must be somewhat considered, 
as well as the inherent limitations that, from that na- 
ture, of necessity belong to it, and are therefore of 
itself a part. 

What is a constitution? An apparently simple 
question, but really presenting a most complex idea. 
I would define it for my purpose at present, as the 
written charter, enacted and adopted by the people of 
a State, through a convention of representatives, or in 
any other way the people may choose to act, by which 
a government for them is ordained and established, and 
by which the people give organic and corporate form 
to that ideal thing, a State, for all time to come, or 
during the life of the State. . In it must be found 
the powers of that government, and the distribution 
of those powers among the several departments and 



166 NASHVILLE : 



Lynn v. Polk. 



agencies, to use them for the purposes therein pre- 
scribed^ but for no other. When this is completed 
and assented to by the people — ratified, the organic 
life of the State begins, and is complete when all the 
fimctions assigned are in full and free operation within 
their respective spheres, as marked out in the Consti- 
tution*. To the life of a /r€6 State it is essential 
tihat no power from without shall (except by its con- 
sent authoritatively given) hold any control, or exer- 
cise any domination whatever over the vital action, or 
over any vital function of the organism into which 
has gone the life, and which carries the will, of the 
people who ordained it. It must be in the fullest 
sense a complete autonomy, acting from its own cen- 
tral impulses, cfoiug its own will, and independent of 
the will of all others. To the extent that this gov- 
ernment is dominated in its vital functions by any 
other power or authority, is its freedom impaired, its 
vital power lessened. As complete domination is com- 
plete slavery, so partial domination, without consent,, 
is slavery to the extent it may be claimed and exer- 
cised. This seems to me self-evident. No State or 
individual is free where another dominates the will of 
that State or individual. 

It is obvious that the first and underlying thing, 
or that which is the first element entering into the 
idea of the existence of an organized State, is that of 
life — the free exercise of its essential functions. The 
organic thing was not ordained as a theory, nor sim- 
ply to give expression to principles of right ; but for 
action — that action to be the life of a free people. 



DECEMBER TERM, 1881. 167 

Lynn v. Polk. 

To its departments are assigned duties and iiinctions. 
These are essential to the life of the State; the exer- 
cise of them is its life. Impeding their freedom, di- 
recting their movement, repressing or expressing the 
will of the State, by a power from without, is to 
make that other master the State to the extent it 
yields this power, — but a mechanism, moved or re- 
strained by a power from without, dominated by an- 
other will, and not the free, self-poised thing, acting 
solely from its own inherent motive power, given out 
on the motions of its own unfettered spirit. It can- 
not be conceived that authority could be conferred by 
a free people in the organization of such a State, or 
that it would give power alone to any department of 
that government ordained for freedom, to make it sub- 
ject to the will of any other power on earth, in re- 
gard to the movement of any of its vital functions, 
for this would be to give the power to destroy that 
which was ordained to live ; to plant the seeds of 
death in the bosom of that which is established for 
life, and only life, — which life consists only in free 
action within a prescribed sphere. Whenever siiok a 
power is attempted to be exercised by any department^ 
it comes stamped with a contradiction on its face. 
Nothing shows it valid, except a plain and unmis- 
takably written grant by the people in their supreme 
law; and then all must say, it would be an incon- 
gruity, a monstrosity, that could only excite astonish- 
ment and wonder. The power to impair or weaken, 
dominate or direct the action of a free government, is 
a contradiction in terms. The expression of the first 



168 NASHVILLE: 



Lvnn V. Polk. 



idea destroys the meaning of the other. Domination 
and freedom nre essential contradictions. The two 
things cannot co-exist. The extent of the exercise of 
the one, marks with perfect accuracy the amount of 
the loss of the other. 

Assuming these premises, I now lay down a few 
general principles of construction to guide in ascertain- 
ing the meaning, in fixing and ascertaining what are 
the powers conferred, and what withheld, in the in- 
strument which I am to construe and apply. I think 
them axiomatic in our constitutional jurisprudence, and 
entitled to be so considered, because they are based 
in necessary truth. The opposite of them must be a 
contradiction in the nature of things. 

I use and adopt, as has often been done by this 
court, the langunge of Judge Denio, in the case of 
People V. Drape?', 15 N. Y., 543, as appropriate on 
this question. He says: "In inquiring whether a 
given statute is unconstitutional, it is for those who 
question its validity to show that it is forbidden. I 
do not mean that the power must be expressly inhib- 
ited, for there are but few positive restraints on the 
legislative power contained in that instrument. But 
the affirmative provisions of the Constitution are far 
more fruitful of restraints upon the Legislature. Every 
positive direction contains an implication against any- 
thing contrary to it, or which would frustrate or dis- 
appoint the purpose of that provision. The frame of 
the government; the grant of legislative power itself; 
the organization of the executive authority; the erec- 
tion of the principal courts ■ of justice, create implied 



DECEMBER TERM, 1881. 169 

Lvnn V. Polk. 

limitations upon the law-making power as strong as 
though a negative was expressed in each instance/' 

These broad general principles are necessarily true, 
as will be seen^ and rest on the principle that an 
affirmative prescription involves a prohibition that its 
opposite shall be at the same time, because the exist- 
ence of the one of necessity excludes its opposite. 
The principle has been well stated by Judge Catron, 
in the case of Norment v. Smith, 5 Yer., 272: "When- 
ever a State constitution prescribes a particular man- 
ner in which power shall be executed, it prohibits any 
other mode of executing such power. On that par- 
ticular subject the authority is exhausted by the con- 
stitutional provision, and an attempt to render it nu- 
gatory by law, would be an attempt at repeal.'' 

Whatever not authorized by the State Constitution, 
interferes with or limits the free exercise of the pow- 
ers conferred on the Legislature, is contrary to and 
in violation of that power. It is a check or burden 
imposed upon its free action. Whatever is in con- 
travention of the frame of government, to use the 
word of Judge Denio, is forbidden ; or, to state the 
principle more succinctly, whatever would defeat, im- 
pede, hamper, control, impair or weaken the free, un- 
trammeled exercise of powers conferred, or the dis- 
charge of the duties imposed on the Legislature, must 
of necessity be in violation of the Constitution of the 
State and forbidden to be done. Whatever tends to 
interfere with the arrangements of the Constitution, 
and hinder those arrangements from being carried out 
with perfect freedom as required, cannot be permitted. 



170 NASHVILLE: 



Lynn v. Polk. 



No power exists in the legislative department to give 
any other power control over the agencies organized 
to carry out those arrangements, except that power so 
to act on the part of the Legislature is expressly, or 
by necessary implication, shown to exist and be con- 
ferred in the Constitution. All presumptions are against 

such power, in the nature of things, till the contrary 

» 

is shown. To do so, is to abnegate their own func- 
tions, and transfer the trust reposed in them to that 
extent to another. If that other be a different gov- 
ernment, to that extent it is slavery. 

As a matter of course, I recognize in all these 
general propositions the fact, that in the Federal gov- 
ernment there are certain powers of domination and 
control over the States, and to that authority as pos- 
sessed I yield a prompt and cheerful obedience. But 
this does not contravene the principles laid down, but 
is strictly in accord with them. The powers thus 
exercised are granted powers from the States, or people 
thereof, therefore exercised by their consent. The gov- 
ernment exercising them, to the extent it does so, 
within the terms of the grant, is the government of 
the State or its people, as much and as legitimately 
as is the State government itself. Its proper sway, 
therefore, is not tyranny, but only the performance of 
beneficial functions, designed for and calculated to pro- 
mote the good of all. 

I now propose to bring the enactment under con- 
sideration, in its salient features, to the test of these 
principles. 

The question to be considered mainly, if not ex- 



DECEMBER TERM, 1881. 171 

Lynn v, Polk. 

clusively, so far as the face of the eDactment is con- 
cerned, is what is known as the coupon feature, found 
in sec. 3: "That the coupons on said compromise 
bonds, on and after their maturity, shall be receivable 
for all taxes and debts due the State, except for taxes 
for the support of the common schools and for the 
payment of the interest upon the common school fund, 
and said coupons shall show upon their face that they 
are so receivable/' 

I remark, first, that this section contains a new 
feature on the bonds of this, or as far as we know, 
any other State, except certain bonds issued a few 
years since by our sister State of Virginia. The old 
bonds, which they are to take up, have the traditional 
and well-known pledge of "the faith, honor and credit 
af the State, solemnly pledged," for the prompt pay- 
ment of the principal and interest therein promised to 
be paid. This bond, as directed, contains that solemn 
pledge of these, but in addition has the added terms 
of contract, that the coupons of the bonds, as they 
become due, are receivable for all taxes and debts due 
the State. 

I may say here, that, under the old bond, the 
rights of parties were understood. The undertaking 
was to pay ; but the only security given was the 
pledge of the faith, honor and credit of the State, sol- 
emnly plighted. I heartily accord with the sentiment, 
that this pledge, when authoritatively made, should be 
held as sacred as the life-blood of her sons — should 
ever be made good to the extent of its terms; that 
the honor, faith and credit thus plighted cannot be 



172 NASHVILLE 



Lynn r. Polk. 



forfeited or tampered with without dishonor, and to 
do so would be a stain on her fair escutcheon. 

But this pledge is given, to be redeemed by the 
collection and disbursement of her revenues, the same 
to be levied by the free- action of her Legislature, 
charged with still higher and precedent duties, to pre- 
serve and keep free from all contingency of impair- 
ment or hindrance the vital functions of the State. 
It was to be met by the action of the Legislatures 
as they might assemble, free to look to the exigencies 
of the State, with no compulsory power over it, — only 
subordinated to the Constitution of the State. Rev- 
enue to be assessed and collected by the free action 
of the Legislature, from time to time, as it might 
direct, in view of the pledge given, it is true, but 
of necessity not excluding from consideration on the 
part of that body the condition and exigencies inci- 
dent to the life of a State were to be the sources of 
payment. This was all well understood, and entered 
into and made elements in the contract, as plainly as 
if it had been written in words on its face. Certain 
it is, there entered into this contract no element of 
coercion — no power to legally enforce or oblige the 
State to comply with her promise and make good her 
plighted faith. 

In the contract proposed to be made under this act, 
the same pledge is given, the same honor, faith and 
credit are plighted, and so far the contracts are the 
same. But, in addition, there is proposed in the new 
contract a new element, stipulations for an additional 
security for the performance of what is promised — a 



DECEMBER TERM, 1881. 17^ 



Lvnn V. Polk. 



security deemed so valuable, that the holders of the 
bonds agree to renew them^ running for ninety-nine 
years, and receive for all that period only three per 
cent, per annum interest, the old bonds bearing six. 
The bond is on the same State, with the same re- 
sources, as the old bond. I therefore assume, the 
liberal extension of time, a credit given for ninety- 
nine years, and a loss of half the rate of interest for 
that period, is deemed but a fair consideration for the 
additional security obtained. 

Be this as it may, we find the . contract proposed 
in the enactment, and the question is whether the 
legislative department of the State had the power to 
authorize the making such contract. 

To test this, I first look at the precise effect of 
what has been done. -What is the nature of this 
new agreement? Does it in this form assume the 
complete essentials of a legal contract made between • 
individuals? In the old contract, it had only the 
elements that enter into an agreement and pledge of 
a State. No legal obligement attached to it. It had 
no principle of enforceability in it; no lien on her 
resources; and no coercive power over these revenues 
attached to it, or inhered in it. Is this element found 
in the new one now proposed? If so, what is it, 
and what is the effect of this element? Had the 
Legislature the power, under the Constitution, to give, 
grant or confer on any body such power, in the 'form 
here given, and to be enforced by the means by which 
this can be enforced? These are vitarl questions, as 
I think, on which the solution of the issue now un- 



.174 NASHVILLE : 



Lvnn V, Polk. 



der consideration to a large extent, if not entirely, de- 
pends. 

First, is the element of coercion, of enforceability, 
in the contract? It certainly is so intended, and 
would be so understood by the holder of the new 
bond. Is it a fact, as a matter of law however? 
That this is true, cannot be doubted if once the con- 
tract is executed and the bonds issued, and the power 
conceded to make the contract. The creditor holding 
the coupons, whenever they are due, can enforce their 
collection. He has given to him, then, the power to 
compel, by his own act, the payment of his debt, and an 
appropriation of the revenues of the State to this end. 
It is so nominated on the face of the bond, and so 
written on the coupon that evidences the indebtedness 
so far as the interest is concerned, and that runs for 
ninety and nine years, — the life of three generations; 
This cannot be doubted as being what the contract 
will contain, and what it means. It is not questioned^ 
we understand, in the arguments of learned counseL 
In fact, we believe, is justified frankly, as proper and 
right. It is said in Burroughs on Public Securities, 
594, in giving the eflFect of such stipulations: "Such 
provisions give an increased value both to the bonds 
themselves and to the coupons. It is an assurance 
to the holder that whatever may be the condition of 
the treasury, he has a mode of enforcing the payment 
of interest which other creditors do not possess. So 
long as the municipality or the State finds it ncces^- 
Siiry to levy and collect taxes^ so long will there be 
a demand for the coupons. It is, in substance^ a 



DECEMBER TERM, 1881. 175 

Lvnn V. Polk. 

first mortgage upon the revenues of the municipality 
or the State. The duty of the tax officers is merely 
ministerial^ and can always be enforced by the courts, 
so that these holders of coupons may stand at the 
door of the treasury and receive the first fruits of the 
public revenues. Whatever may be the necessities of 
the State for the use of funds in conducting the gov- 
ernment, they are all to be postponed until the pub- 
lic creditor with the first mortgage is paid." 

This is a strong statement, but is substantially true. 
The contract is certainly in the nature of a mortgage^ 
for it gives a right to appropriate the revenues of the 
Stsate by the holder whenever his debt becomes pay- 
able. The right of the mortgagee is to do the same, 
either by entry on condition broken at common law, 
or by strict foreclosure in a court of equity under 
the old rule, or, under our practice, by a sale under 
a decree of a court of chancery. In this case, how- 
ever, the party has secured to him by ihe contract 
the right to appiopriate the revenues of the State to 
his payment by his own act. He has but to tender 
his coupons to the tax collector, and he is by the 
law bound to receive them, and thus his debt is paid. 
In this aspect, it is more analagous to our deed of 
trust, made to the creditor himself, to secure the pay- 
ment of his debt when due, with power of immediate 
sale on default, and appropriation of the proceeds to its 
satisfaction. Should the tax collector refuse to receive 
it, then a legal proceeding to enforce the right would 
be his remedy. If the Stite said her tax collector 
should not be sued in any way, and repealed our act 



1 

176 NASHVILLE: 



Lvnn V. Polk. 



of 1873 authorizing suit after tender, giving no rem- 
edy at all, the case could be taken to the Supreme 
Court of the United States, if the State court decided 
against him, and there it would no doubt be held to 
impair the obligation of the contract, and the courts 
of our State be compelled by mandate of that court 
to enter the proper judgment, as held by that court; 
and so the right would be enforced, and that by a 
foreign jurisdiction, if necessary. The supreme court 
having jurisdiction over the question, and revisory 
power over the State courts, in such a case, the State 
courts would, as in duty bound, perhaps follow the 
Federal decisions, and administer the remedy. I need 
not, however, point out how the right could be en- 
forced. It suffices, the contract is that the party 
may enforce the payment for himself, and so he has, 
by its terms, his remedy in his own hands. Through 
the State courts, under the act of 1873, it may not 
be a very effective one practically, and such I think 
is the case ; but the contract is the question now, 
and not the eflSciency with which it may be enforced. 
If the right to do go in some form is in the bond, 
then the question of the power to make such a con- 
tract, is the test, and not the efficiency or inefficiency 
of the remedy for its enforcement. As to remedies 
through the Federal courts, I need not stop to dis- 
cuss them here. They are ample, and would give 
efficiency to the right of the holder of the coupon, so 
far as legal or judicial action is concerned. I take 
it this is not denied bv learned counsel. We need 
but point to the Bank of Tennessee cases and others 



DECEMBER TERM, 1881. 177 

Lvnn V. Polk, 

of that class to show how that power may be effi- 
ciently brought to bear to compel the performance of 
this contract, if it once pass into the stage of com- 
pletion. See Furman v. Xichol, 8 Wall., 44; Keith 
V. Clark, 97 U. S., 454. I stop here to say, that 
the question of the liability of the State in the mat- 
ter of the issues of the Bank of Tennessee, as an ex- 
ecuted contract, has gone into judgment in the Supreme 
Court of the United States; and if it had not already 
done so, that court, holding it a contract, would cer- 
tainly have enforced it whenever brought into question. 
The fact that this court might hold the contract un- 
constitutional subsequent to completion of the contract, 
would not control that court. See Siaie Bank of Ohio 
V. Knoop, 16 How., top p., Curtis ed., 191 ; Talcott 
V. Tovmship of Pine Grove, U. S. 6th Cir^it, 1 Bond, 
121 ei seq., where the ca^es are all collected. See, 
also, the doctrine, as now^ held, same case, in Supreme 
Court of United States, affirming decree of the circuit 
Gourt, 19 Wall., 666. I quote the syllabus of the 
opinion of that court, showing how^ far the court goes 
to enforce such obligations, even when issued in vio- 
lation of the Constitution of the State and held void 
by its own supreme court.- It is: 

" The decisions of the highest courts of the State 
to the contrary will not be respected by this court 
when such decisions are not satisfactory to the minds 
of the judges here, and when the matter in question 
18 bonds issued in negotiable form by a township of 
that State, and now in the hands of a citizen of an- 
other State or a foreigner, bona fide for value paid. 
12— VOL. 8. 



178 NASHVILLE: 



liynn v. Polk. 



Questions relating to bonds issued in a negotiable form, 
under such an act, involve questions relating to com- 
mercial securities; and whether, under the Constitution 
of the State such securities are valid or void, belongs 
to the domain of general jurisprudence." 

See, also, 16 Wall., 667-8. I need not comment. 
The principle is well known and settled. That court 
would as certainly enforce the coupon feature, and pro- 
tect it from impairment by repeal, suspension or mod- 
ification by the Legislature or any" other power of the 
State, as that the sun rises and sets. In fact no 
one, I take it, questions this, least of all the holders 
of the bonds. It suifices to sav, that these decisions 
and the well known and settled rules established in 
the Supreme Court of the United States, together with 
the experience of the State on the question in the 
cases of the Bank of Tennessee, do not invite this 
court to go a step further than safe and assured con- 
stitutional exposition shall require, in affirming a power 
in the Legislature to make like contracts. We should 
iit least tread cautiously on such ground. 

But to the argument. That th^ Legislature has 
not the power to abnegate any of its essential func- 
tions, or to confer on any one, or any body, author- 
ity or power of compulsory control, either directly or 
indirectly, over its free action in their performance, 
would seem to be self-evident. To make the laws 
that shall govern a free people, that body itself must 
be free to adopt all such measures as the varying 
exigencies and wants of her people may demand. The 
true principle cannot be better stated, perhaps, than 



DECEMBER TERM, 1881. 179 



Lvnn V. Polk. 



in the language of Mr. Greenleaf, cited by Judge 
Cooley in his Const. Limitations, 344, note 2. He 
says: "An important distinction should be observed 
between those powers of government which are essen- 
tial attributes of sovereignty, indispensable to be always 
preserved in full vigor, such as the power to create 
revenues for the public purposes, to provide for the 
common defense, to provide safe and convenient ways 
for the public necessity and convenience, and to take 
private property for public uses, and the like, and 
those powers not thus essential, such as the power to 
alienate the lands and other property of the State, 
and to make contracts of service, and of purchase and 
sale, or the like. Powers of the former class are 
essential to the constitution of society, as without them 
no political community can well exist; and necessity 
requires that they should continue unimpaired. They 
.4ire entrusted to the Legislature to be exercised, not 
to be bartered away ; and each Legislature should as- 
semble with the same measure of sovereign power which 
was held by its predecessors. Any act of the Legis- 
lature disabling itself from the future exercise of pow- 
ers entrusted to it for the public good must be void, 
being in effect a covenant to desert its paramount 
duty to the whole people." 

These are words of weight and wisdom, and the 
principles stated embody the necessary limitations in- 
herent in the Constitution of a free State. 

That the coupon contract gives the holder power over 
the revenues of the State, is not questioned; power to 
appropriate them at his option to the payment of his 



180 NASHVILLE : 



Lvnn V. Polk. 



debt, whether she will or not, at any future day. 
This is the terms of his contract. That option is 
conferred by the act in plain terms. But it is said 
it can never come into play except the State make 
default; that this cannot be presumed, and therefore it 
is harmless. That is, however, but to state a fact,, 
that, put in simple language, is, that the party can- 
not enforce his debt till it becomes due, and if it is 
paid he will have no debt to enforce, and there the 
matter -would end. But the real question is. Has he 
the power, by contract, to enforce his claim on the 
revenues of the State, by appropriating them to his 
payment in the manner prescribed, whenever the con- 
tingency may occur on which that right arises? — not 
when it has not arisen. 

What, then, in this aspect of the question is the 
actual eflFect of what is proposed? Does it fix a con- 
tract liability, in the nature of a first mortgage, on 
all the revenues of the State; give control over its 
vital functions; compel in any way the action of its 
Legislature; impair the freedom of action of that 
body, and make it subordinate to any extent to the 
will of another? If so, does such a power exist in 
the Legislature, or can it be conferred on another? 

That this contract gives a compulsory power over 
all Legislatures for ninety-nine years, seems to me be- 
yond question ; not directly applied it is true, but 
certain, efiective and secure. The creditor has his 
own option to enforce it, and has the power of the 
Federal courts to give imperative efficiency to his will. 
The debt may be assumed to be twenty-seven mill- 



DECEMBER TERM, 1881. 181 



r 



Lynn t;. Polk. 



ions; the sum necessary to meet the coupons annu- 
ally, $810,000. When the future Legislatures of the 
State assemble for the next ninety years, that body 
is in the cpndition of the mortgagor who has given a 
mortgage upon the crop he has raised that year. His 
wife and children and himself need clothing and all 
necessaries of life. They mtLst be fed or die. He 
mvst sell that crop for enough to pay that debt and 
have a surplus for these demands that touch on life 
itself, or they must suffer or perish. That debt, how- 
ever, stands first, and the iron chain of a contract, 
enforceable by all tjje power of the State through her 
courts, is linked to it, and fastens it on the proceeds 
of his labor. Does he act with the freedom of an 
unfettered man in the disposition of the proceeds of 
that year's labor? Is there not a power above and 
over him that holds him in its grasp, that compels 
him first to work for it, and then compels the appro- 
priation of the proceeds of that labor? But the Leg- 
-iiglature of the State is not in his precise condition. 
It has duties confided to it — imperative trusts, which 
it has no power to bargain, sell, assign or transfer. 
These are fixed in the Constitution of the State, which 
it has no power to violate. Its action beyond the 
sphere marked out, is a nullity and binds no one. 
It cannot abnegate its powers, or transfer them to 
another. Its duties are first to provide for the wants 
of the State. Government is a necessity to the life 
of the State. Officers to perform those functions an 
essential element of the life of the organism. It man- 
ifests its life by action, or lives through these func- 



182 NASHVILLE : 



Lvnn r. Polk. 



tionaries, and without them the constitution of gov- 
ernment is a thing of no more vital power than is 
one of the many constitutions forged so rapidly in 
the days of the French revolution by her fruitful 
statesmen, as it lies in the archives of France or 
stands on the printed page of history. To live the 
life designed by the State is the underlying and para- 
mount purpose of the establishment of the government 
at all. The legislative department has no power con- 
ferred to impair, weaken or destroy that life. For 
it, it must provide, and provide first, because the free 
life of the State is the first and hjghest duty imposed 
on it. This must of necessity be preferred to all 
other claims. No debt or contract can ever rise above 
this. This is necessarily so, for the debt, if paid, 
must be paid by and through the action of the State.. 
That action can only be by her officers. The Legis- 
lature must levy the taxes, and these be collected by 
her officers, the collection enforced by her courts, and 
then disbursed by her appointed disbursing agencies* 
The Governor, as her executive, is a necessary part 
of her machinery for all her functions, his duty being 
to see that her laws are faithfully executed. The 
existence of all this machinery in full vigor and effi- 
ciency is a necessary and pre-existent conception, in- 
volved in the very idea of paying at all, or perform- 
ing any contract or duty. Therefore the Legislature,, 
as one department of the government, by necessary 
implication, is forbidden to grant any power or con- 
trol by any one over the life of the State through 
these functionaries; but above all, over the Legisla- 



DECEMBER TERM, 1881. 18S 

Lvnn ». Polk. 

ture itself. That ie the department to which is eon- 
fided the trust of providing for the life of all the 
others. In performing that duty, it is the guardian 
of the life of the State and the representative of its 
freedom. It can never trammel, by contract, its 
power to perform that trust, nor fasten a chain by^ 
contract, rightfully, on itself, that shall interfere with 
the perfect freedom of its constitutional action. It 
must be left to perform all its work as free from 
control from without as should ever be the free spirit 
of her own sons, bound only by the Constitution of 
the State and of the United States, these being but the 
embodiments of her own free will. If this contract 
is permitted to be executed, it will be a legal chain 
that cannot be broken, and a force for . coercion on 
her Legislature, not directly applied to that body, but 
equally as effective, that will compel its action and 
give, that action its direction. This control the Leg- 
islature is forbidden to give, by the principles I have 
laid down, and the effort to give it is beyond the 
power of that body. 

Let us see how this control is operative. In the 
future, when the Legislature meets, and looks over the 
estimates of expenditure for the next two years, which 
it is its duty to provide, aud . appropriate specifically 
to each item the amount required, which cannot other- 
wise be paid, there will always be an item of interest on 
these coupons, which will stand on ground higher than 
all the others. To meet the others is, in the case of 
the official salaries, and of their own, with other like 
items, an imperative duty, involving, as we have shown^ 



184 NASHVILLE : 



Lynn r. Polk. 



the life of the State. But this claim by contract la 
now before and above all these. It stands backed bv 
a power, silent and with a harmless appearance, em- 
bodied in a few simple words, but imperative as fate, 
with a word of command that compels its voice to be 
heard and obeyed. That item mud first be provided 
for. Why? If it is not, when it falls due, the 
creditor can compel its payment through the tax 
collectors. All the revenue that may be levied, or 
collected, till this is paid, may be stopped, and only 
coupons come into the treasury. They are to bo 
cancelled ; and if this were not so, they would not 
pay salaries, nor support the life' of the State. 

Let us look at this for a moment. Suppose the 
Legislature should propose to levy a special tax for 
official salaries of the State officers, in the form of so 
much on the hundred dollars of taxable property, as 
is now done by the a(t of 1873, sec. 38, for the sup- 
port of common schools; and should then appropriate 
this to the payment of these salaries in the appropri- 
ation bill ; under this contract, the holder of a due 
coupon; or the holders might tender the coupons in 
payment of the whole tax, and thus absorb it. In 
fact the salaries of all the officers of the State, and 
of the Legislature itself, could be more than absorbed 
by the amount of this interest. And so, if all the 
legitimate and actual ascertained expenses of the State 
were itemized, and provided for by a special tax, as 
might be done, this debt could be interposed, and by 
the terms of the contract enforced, over the means 
provided for these purposes. It is a Hen preferred, 



DECEMBER TERM, 1881. 185 

Lvnn V. Polk. 

and has precedence over them. The creditor could, 
if he chose, intercept these revenues, like a process of 
garnishment, and of his own will say, "the salaries and 
expenses of the State are now subject to my direction. 
I will adjudge these shall be used to pay my debt, 
and so appropriate them. The necessary expenses of 
the State must defer to my claim." So it is nomi- 
itated in the bond, and there is no evasion, when his 
right accrues. This demonstrates, that this is power 
over the very life of the State, and that it is an ef- 
fective one ; and to preserve that life, the Legislature 
will be compelled to meet his demand first. 

The case I have put, however, only brings out the 
operation of this power on these special taxes, if laid 
in that form. That it is certainly accurate, is shoAvn 
by an illustration at hand. Suppose there had been 
no exception in the enactment, as found in the third 
section, of "taxes levied for the support of the com- 
mon schools," would not that tax be subject to this 
contract, and might it not all have been paid, under 
this act, in coupons — in other words, appropriated by 
the creditor to his debt, though levied for the specific 
purpose of the su[)ort of the schools? If this be so, 
it inevitably fallows, that any tax levied for any pur- 
pose, not excepted, is subject to the charge of this 
mortgage. 

That this power, if exercised in the specific way 
pointed out, gives the creditor power over the life of 
the State, is too clear for question. But the princi- 
ple is precisely the same, when no such special tax is 
levied. The power is over all the taxes and debts 



186 NASHVILLE: 



Lvnn V. Polk. 



due the State, with the exceptions in sec. 3; and what 
is over the whole, is necessarily a power over the parts. 
So that the real question is, whether the Legislature 
can, in any contingeacy, give such power of prefer- 
ence to a creditor over the salaries of officers — her 
necessary expenses to pay which is essential to her 
existence — in a word, over all her revenues, and make 
these subordinate to his claim by contract, to be en- 
forced through his own will, or through the agency 
of the Federal courts — or in fact any other. But this 
hereafter. 

The point now is to show that it is compulsory 
power over the action of the Legislature. In view 
of the rights of the creditor under this contract to 
enforce it in the way we have stated, the compulsion 
is on the Legislature to levy a tax, and realize it so 
as to have it in hand on the 1st day of January and 
July of each year. The penalty is, that the bond 
will be forfeited, and the mortgage enforced, and the 
normal life of the State be in the hands of the cred- 
itor. All her sources of revenue are mortgaged to 
him. She can only prevent its enforcement, and the 
revenues necessary for her existence, from being ap- 
propriated by him, by responding to liis demands 
promptly and certainly. To this she is compelled. 
If she fails she perishes, or her life is choked to the 
extent of the failure. Is such a Legislature the free, 
unfettered representative, and can it give voice to the 
will of a free people? Does it meet with the same 
unfettered power to do its own will, as Legislatures. 
before have met? It is said, it is the duty of the 



DECEMBER TERM, 1881. 187 

Lynn v. Polk. 

State to meet lier debt promptly ; conceded ; but is 
that duty higher than to h've? Is it above the duty 
to provide for the necessary expenses of the State? 
If not, then a contract that puts a claim above them 
must be void. Has the Legislature the power to give 
a preference to this duty, over that of the higher 
and vital duty of paying the salaries of her officers? 
I unhesitatingly affirm, no — and cannot doubt the cor- 
rectness of the conclusion. 

But again. These essential duties are left to the 
free action of the Legislature by the constitution. 
They are more imperative by far than the duty of 
paying the creditor his interest. Why should the one 
be left free by the constitution, and by contract the 
other made compulsory? Yes, compulsory, by a power 
over the State's vitals. Free it was intended she should 
be in her action as to her own government and people, 
and that freedom cannot be mortgaged as a security for 
the bond of her creditor. Can it be bargained and bar- 
tered in the market by the Legislature, like a worn- 
out garment? If so, instead of being the proud 
representatives of freemen, it is but fit to stand for 
slaves, and obey the behests of a master. This is 
not what the constitution designs, and can never be 
allowed. 

If the Legislature can by contract give creditors 
the power to compel the levy of eight hundred thou- 
sand dollars per annum for their benefit, why may it 
not by the same means contract, that they shall com- 
pel the levy of two millions, or ten ? Concede the 
power, and who can mark the limit of its exercise, or 




188 NASHVILLE : 



Lynn v. Polk. 



say thus far shait thou go and no farther? No court 
can fix the boundary line where the power ceases to 
exist; and so, the principle conceded, it involves the 
right to give creditors the power to compel the levy 
of all the taxes that could be levied, and so give 
them the control over the entire taxing power of the 
State; and thus the full power, which the Legislature 
itself has over this vital governmental and legislative 
function, may be the subject of contract. This is to 
bargain away the government itself — a thing not mark- 
etable, or transferable, as I understand the principles 
of our constitution. Add to this, however, the prop- 
osition, that such a contract may be obtained by 
bribery and the corrupt use of money, and that the 
courts can give no help, as is the contention of the 
defendants — that the only remedy is, not to vote for 
the faithless representative next time, or to expel him 
the Legislature ; but the people must pay ; the debt 
be valid ; and then our constitutional system is but 
a farce — the rights of the people a myth. 

But, why shall the Ijegislature not thus give con- 
trol over its free action? The answer is, it holds all 
its powers as a trust, and the duties of that trust, the 
functions of the trustee charged with them, can never 
be sold, never trammelled, never subordinated to the 
will of another, by contract, without interfering with, 
and frustating the objects of the trust, and defeating 
or obstructing the arrangements of the constitution. 
Such a bargain is, therefore, by necessary implication, 
forbidden. When exercised under this compulsion, the 
Legislature would not act as the law-making depart- 



DECEMBER TERM, 1881. 18& 



Lynn v. Polk. 



ment of the State, from its own free, untrammelled 
impulse, at its own will, as the representative of the 
will of the people, but would be under the control 
and compulsion of its creditor, whose will it is bound 
to obey, at the peril of the life of the State, and in 
this, would be his representative or agent, rather than 
the representativ^e of the people who elected them. 
This can only be a gross departure from the terms 
of the trust under which it holds its power; its con- 
summation, the enslavement of the State to the extent 
the power exercised. 

We have two illustrations in our own Reports, that 
occur to me now, of the principle that the Legisla- 
ture cannot transfer control over its own functions. 

The case of Marr v. Enloe, 1 Yer., 453, was an 
attempt by the Legislature to confer on the counties, 
through their county courts, the power to levy a tax 
to meet the current exnenses of the county. This 
was done before the constitution of 1834 had given 
the authority, as now exists, to authorize counties and 
incorporated towns to levy taxes for county and cor- 
poration purposes. This court, by Judge Catron, with 
more than ordinary vigor, repudiated such a right, and 
held the law unconstitutional and void, saying : " Is 
taxing the people an act of legislation ? That the tax- 
ing power belongs to the Legislature, and that exclu- 
sively, and is, if not the most important, at least 
of equal magnitude with any power entrusted by the 
constitution to the general assembly, is a truism never 
doubted or denied in Tennessee. Can this constitu- 
tional right, by an act of the general assembly, be 



190 NASHVILLE: 



Lvnn V. Polk. 



vested in a few individuals in each county, who are 
not dependent on the people, to tax without limit, and 
•even spend at pleasure, without responsibility and with- 
out control?'' The justices were not then elective, 
but appointed by the Governor. After denouncing 
this tyranny, he holds the act a nullity. 

In the case of The State v. Ai-roHtrong^ 3 Sneed, 
634, this court, through Judge McKinney, in terms 
of vigorous reprobation, held an act void, that pro- 
posed to confer on the courts the power to grant 
charters of incorporation, though the powers of such 
corporation were all defined by the act, when created. 
The principle on which this was done is, that it was 
an attempt to confer the right to exercise legislative 
power on the county, which power was confided to 
that body alone. 

These cases are not identical with the one now in 
hand, but the analogy is striking, and the principle 
the same. The transfer of the power to the county 
court in one case, and in the other to the circuit and 
chancery courts, was but giving to these bodies the 
control of that power to the extent indicated. To 
this extent it was a complete control, and was a di- 
rect exercise of the power. But there is no difference 
in principle, whether I give a man the right to do 
an act that I am to do, or more circuitously, I con- 
fer on him the power to compel or control my own 
action. To tiie extent that he excrci^rs that control, 
and may use that power effectively, it is an exercise 
of the power which I was bound to exercise — only he 
uses me as his instrumentality. All action under the 



DECEMBER TERM, 1881. 191 

Lynn i-. Polk. 

will of another is enforced, and not free, and is but 
the act in fact of that other, disguise it as we may. 

So in this case, the Legislature has given the cred- 
itors power to compel the Legislatures for ninety- nine 
years to levy a tax sufficient to meet their debt, in 
preference to all other claims op the State — her official 
salaries and all, and this at the peril of enforcement 
of their mortgage, though it should paralyse all the 
departments of government; and under this compulsion 
it is agreed, and so written, all future Legislatures for 
this period shall act. Is not this practically the trans- 
fer of power and control over the Legislative depart- 
ment, and is not such control, in fact, the right to 
t3ompel the mode of action, to the extent of the debt, 
of that body? And if so, what is thus compelled, is 
but the act of the party compelling, and not of the 
mere instrumentality, the Legislature. Therefore, in 
the exercise of the taxing power, so vital to the State, 
the Legislature to the extent of paying this debt, acts 
solely as the agent of these creditors, under their will, 
and do their bidding, and in this the people can have 
no voice in the future, nor that body 2.ny freedom. 
It is dominated by the necessities of this contract, 
4ind thus the legislative body of a free people reduced 
to the position of servants of a master, rather than a 
body of freem<^n. 

The principle of the cases cited, forbids us to re- 
cognize such power. In fact it is evident that to the 
extent of the debt due these parties, they can compel 
the action of the Legislature, and in this is found the 
real security which inheres in this contract. As I 



192 NASHVILLE: 



Lvnn I'. Polk. 



have shown, all the revenues of the State, with two 
special exceptions in sec. 3, arc subject to this mort- 
gage. That is as clear as sunlight. The fact that 
the exceptions are put in the act, to secure interests 
deemed too sacred to be charged, is unmistakable evi- 
dence that the Legislature so understood what they 
were doing, and did what I have maintained they have 
done. I am compelled to hold, that body has no 
power to do this, unless I can agree that a creditor 
may be given rights that shall override the right of 
the people to have a free and unfettered Legislature. 
In other words, that the Legislature can destroy or 
fetter, or burden, the very central force, that ' sends 
vitality through the whole body politic. This I can * 
never do. 

That this power is in violation of the express af- 
firmation of the constitution, and in derogation of its 
clear and definite prescription, is demonstrable. By 
the constitution it is provided, the Governor '^ shall, 
at stated times, receive a compensation for his ser- 
vices": Art. 3, sec. 7. By art. 2, sec. 23, the com- 
pensation of the Legislature is fixed to be paid them 
for their services. By art. 6, sec. 7 : " The Judges 
of the supreme or inferior courts shall at stated times 
receive a compensation for their services, to be ascer- 
tained by law." In addition, numerous officers are 
provided for, and all must be paid out of the revenues 
of the State, in some form ; for offices under our sys- 
tem, involve duties and salaries, as necessary incidents 
to office. Payment of these is necessary to the con- 
tinued action of the government. Such as I have 



DECEMBER TERM, 1881. 193 

Lvnn V. Polk. 

mentioned above are required to be paid at stated 
times, and, as a matter of course, paid in money. 
When these coupons mature, they have the preference ; 
they may be tendered, by the terms of the contract, 
and thus the taxes levied and received may come into 
. the treasury, as coupons, till they are absorbed. They 
will not pay salaries, they are not money ; with them 
no salaries can be paid, no expenses of thfe State can 
be met. Then here is a contract to do, and be com- 
pelled to do, what if done, as agreed, may deprive the 
State of the power to do what the constitution says 
shall be done; and under the settled Federal law as 
to contracts, it must stand as a contract, as unchange- 
able as the laws of the Medcs T?nd Persians, and no 
power beneath the sun can change, alter or impair 
the force of its obligation, if once completed. I can- 
not, as a Judge of a free State, assent to the propo- 
sition, that such a power is confided to the Legislature 
under our constitution. If this shall be permitted to 
pass into complete execution, and this court fail to lay 
its hand upon it and restrain, then the act is irre- 
vocable — the chain can never be broken. With these 
convictions, I should be recreant to the trust repose<l 
in me, and an unfaithful guardian of the constitutional 
rights of a generous people who have honored me by 
my high place, if 1 should fail to say, that for my- 
self it shall not be done. 

An argument, ingeniously framed and most skillfully 
put, has been made, to the effect tliat the coupons 
can never be tendered till after maturity, and this can 

never occur till after default on the part of the State 
13— VOL. 8. 



194 NASHVILLE : 



Lynn v. Polk. 



in payment of the interest, and this cannot be pre- 
sumed will occur. 

The answer is, this does but state a fact, that the 
right can never arise till the debt is due; but the 
question is ifot how or when the right over the State's 
revenues shall arise, or under what conditions may it 
be exercised, but can such a power be granted to 
arise at any time, under any conditions? The fact 
that it can only be prevented by a certain defined 
course of action, is an element that renders it obvious, 
and demonstrates its controlling power. The contract 
by its terms, it is necessarily conceded by this argu- 
ment:, gives the compulsory power over the I^egislature 
which I have argued it does; and to the extent the 
power of compulsion is given, and to the whole extent, 
has the Legislature transferred into the hands of others 
than itself, the legislative power of the State conferred 
on them as a sacred, inalienable trust, to be exercised 
by that body under the limitations of the constitu- 
tion, but subject to no other restaiut, no other will, 
nor obedieut to no person, whether individual or gov- 
ernmental, beneath the sun. 

It has been said, that the State can only be sub- 
ject to the influence of this contract by violating her 
plighted faith, and failure to keep her promise. The- 
oretically this may be so, but practically I must know 
from the nature of the thing provided, and from my 
knowledge ot the operations of our system of laws 
and governmental machinery, that this is a mistake — 
if by default and breach of promise, is meant a will- 
ful violation of the terms of her contract, or willful 



DECEMBER TERM, 1881. 196 

Lynn v. Polk. 

failure to provide the means of paying the interest to 
the day. It possibly may in most cases be done, bat 
it is probable in many cases it cannot be done, withr 
out at least doing in fact, what the Legislature is 
compelled to do by this enactment, that is, by giving 
a preference to this claim over the support of the 
State itself 

After the first of January, there must be first 
gathered into the treasury and laid aside, the sura, or 
about the sum, necessary to meet the semi-annual mt- 
terest, say ^405,000, and so again after the first of 
July. The taxes being levied in one aggregate mass 
for this and all other expenses, unless it be that no 
pressure of misfortune, no drouths, nor epidemics, with 
baleful breath and black wing — no monetary crises or 
revulsions, such as, vivid in the memory of all, occured 
in 1873 — no such long period of universal pressure as 
followed, is again to come — then such a failure will 
come, and no human foresight can avoid it, no skill 
evade it. And then what must be the result ? The offir 
cers of the State must go unpaid, their services be per? 
formed on a credit or not at all ; the functions of 
government be performed without the vital force of 
money to support them, and the other creditors of the 
State be postponed to the claims of the mortgagee 
under this mortgage. Either this must follow, or 
what is still more revolting, the State must, like the 
mortgagor we have referred to, when his crop has 
failed, his labor been unrewarded though faithfully 
given, stand, at the end of the year, before his credr 
itor, with bowed head and broken spirit, and ask or 



196 NASHVILLE : 



Lvnn V. Polk. 



beg for indulgence, negotiate for dely, and pray that 
the mortgage be not enforced. It is at his option, 
however, whether he do so, or grant further time ta 
breathe. The contract she has made then will be felt 
to be too heavy a burden to be borne by a free 
people, and in her madness, she may be driven in 
desperation to repudiate her debts, and break the 
toils, like a giant bound, that have been unwit- 
tingly placed by her representatives about her, to 
fetter her free limbs. I would not see her thus bounds 
because I believe that free from bonds ehe yet may 
be trusted to keep her faith, and maintain her honor 
unsullied. If the opposite be the fact, then' no legal 
cobwebs will hold her to her duty, and the bond is 
as worthless as the paper on which it is inscribed. 

Our statute book, since 1873, if not before, abun- 
dantly sustain what I have said. Statute after statute 
stands on it since then suspending the enforced collec- 
tion of the taxes, even for the support of the life of 
the State, and we all remember the issuance of war- 
rants receivable for taxes some years since. . Some 
have had experience in receiving them for hard toil 
in her service. We cannot but assume that all this 
was not of choice, but the result of influences beyond 
the control and foresight of our Legislature. He who 
assumes that no such times will come again, must as- 
sume that history never repeats herself, and in the 
blindness characteristic of hopeful youth, expect that 
sunshine, prosperity, and above all, stability and fixity, 
shall characterize all the future years — the ever shift- 
ing surging elements that make up our national life^ 



DECEMBER TERM, 1881. 197 

Ljnn V. Polk. 

will cease to wreck fortunes or blast hopes — the polit- 
ical sky be forever unclouded — the financial movements 
of our Republic be in the future conducted by more 
than human wisdom, uninfluenced by the madness of 
speculation — secured against all its reckless consequences. 
He who can believe this, may well look for the mil- 
lennial day to dawn; for if he is right, the world's 
redemption from evil certainly draweth nigh. But 
sober wisdom can indulge no such dreams, and must 
look for a prophecy of the future, in the records of 
the past; and this gives no uncertain utterance. Its 
lesson is one of warning, and assurance that the thing 
that hath been, will surely be again, and no wisdom 
or device of men will make the life of man or State, 
anything but one of mixed evil and good, of pros- 
perity and adversity. When the one or the other, no 
one can say. 

One other view of this question may be given. 
The only assumption on which what is proposed can 
even plausibly be palliated is, that the charge in fact 
will not absorb all the available revenues of the State 
at any time, or may never practically reach the results 
indicated. How that is, I do not know. Nor is it 
important to settle. The lien, the charge, the mort- 
gage given, as I have shown, is fixed on aU the rev- 
enues, save the specified exceptions. Like the case 
of a man mortgaging all his lands, including his home- 
stead right, for a debt; it may be worth more than 
the debt at present, largely more, and may on sale 
leave a surplus. But it may not; and all experience 
^hows the futility of human calculations to fix in ad- 



198 NASHVILLE : 



Lynn v. Polk. 



vknce what may be the result. But by the mortgage 
all his property is charged with the debt, and 
thenceforward he holds only a qualified right in it — 
an equity of redemption — the creditor the beneficial 
interest, and the legal title. Can a Legislature do 
this at all, either for a small or large debt, is the 
question. 

This is a question .of power, not of the extent of 
its exercise in this particular case. If the power be 
conceded, that has no limitation. Discretion may pre- 
vt&nt its exercise to the destruction of the State, but 
that discretion is not for the judiciary, but the Legis- 
lature to measure. It then, if admitted as a power, 
is arbitrary in that body, and there is no restraint 
whatever upon its exercise. 

To test certainly the question of power, let us see 
what its admissions of necessity involves. If the Leg- 
islature can thus charge by such a mortgage, the whole 
revenues of the State, to the extent of eight hundred 
thousand dollars^ it may give the same lien to the 
extent of two millions, or five, or any other amount. 
If it may do this, and mortgage to the extent of the 
sum here proposed, then it could, after ascertaining all 
its sources of revenue, proceed to assess all for ten 
years, by an assessment law to the full amount it 
Would bear, and then transfer all these revenues by 
contract to the holders of her bonds, to pay bonds 
«md coupons, and make both a tender for the whole 
tax levied, and so deprive the treasury of all revenues. 
If the bargain now under consideration is in the power 
of the Legislature, the one supposed is equally so. 



DECEMBER TERM, 1881. 19» 

"* 

Lvun V. Polk. 

Under such a contract for ten years, the creditor pos- 
sibly might thrive, but the State would inevitably, 
(to use the language of an indictment for murder), 
"of this wound languish, and languishing die.^' To 
say that an admitted . and complete power to do a 
thing by the Legislature, can be restrained within 
harmless limits, or the discretion prevented from being 
abused, if dangerous, is not to reason on principle, 
but to trust to fortune. No such power is given ; 
its exercise involves paralysis or death to the State. 
Therefore no concession of such power, involving such 
results, can ever be made at all. Where the limit 
could be fixed for the extent of its exercise is <o be 
marked, no human sagacity has ever yet* been able to 
define. It is in the nature of the thing, when con- 
ceded, unlimted — therefore cannot, for the reasons given, 
be conceded to exist at all. 

In the consideration of this case, I dare not be 
influenced by the fact that the State is assumed to 
owe and be bound in honor to pay the bonds now 
outstanding, or that her pb'ghted faith will be broken 
if it be not done My own feelings or convictions 
on this question, be they what they may, I cannot 
allow to influence me in the slightest. That is not 
the question. It is simply one of law — of constitu- 
tional power.- When I find that power is not con- 
ferred, but forbidden ; when ' I see the act proposed 
to be done is inhibited by the constitution, and as I 
think may touch the vitals of the State, however mer- 
itorious the claim, however it may appeal to State 
pride and honor, and the love I* bear to these and 



200 NASHVILLE 



Lviin V. Polk. 



for my own native land, I must push all these aside, 
and follow the lead of ray judgment, the convictions 
of my duty, and where these point, must fearlessly go. 
I have not gone into the cases in the Supreme 
Court of the United States, holding States may make 
contracts of perpetual exemption of property from tax- 
ation, as well as many other questions presented in 
argument. Nor have I made large citations from au- 
thorities or decided cases. I have found it too much 
labor, in view of the necessary discussion of the main 
questions presented, to do this. I have felt compelled 
simply to give my own conclusions, with some of the 
reasons for them, without undertaking to cite author- 
ity on every -point, or answer all objections. I have 
reached :hat conclusion on principles I think sound, 
and of which I have no doubt. The only cases bear- 
ing directly on the validity of the coupon feature, are 
the Virginia cases. They have been carefully exam- 
ined. With great respect for the tribunal pronouncing 
them, I am not convinced by them, nor can T agree 
with theni. I cannot, therefore, follow^ them, but my 
own judgment. See 22 Gratt., 833, approved in 24 
Gratt., 159; and 30 Gratt., 134, for these opinions. 

On the subject of bribery and fraud, the bill, among 
other things, substantially charges that the members 
elect to the Legislature had maintained, in their can- 
vass for election before the people of the State, that 
there should be a compromise and abatement of the 
amount claimed to be due the holders of the bonds; 
and that all, or nearly all, were elected solemnly pledged 



DECEMBER TERM, 1881. 201 



Lynn t;. Polk. 



to obtain such a compromise. And it specially charged 
that all were pledged to their constituency to oppose 
the coupon feature of the bill, or any measure of set- 
tlement that should have as one of its terms that the 
coupons should be receivable for taxes. 

It is also definitely charged, that on a large por- 
tion of the bonds now proposed to be funded suits 
had been commenced, in the Federal courts at Nash- 
ville, Knoxville and Memphis, by the bondholders, to 
enforce a lien claimed to exist by law in favor of 
the holders, on the railroads, for whose benefit said 
bonds were issued, and that a test case had been 
heard, and had . been appealed to the Supreme Court 
of the United States, and now pending in that court 
for decision. In view of this litigation, it is alleged, 
said bondholders and railroad corporations entered into 
a combination and conspiracy to procure by improper 
means a settlement of the debt of the State dollar for 
dollar, with coupons receivable for taxes, with the un- 
derstanding that when such settlement should be pro- 
cured and effected, the said litigation between them 
should 'be dismissed and the liens claimed therein should 
be abandoned. This result, I may say here, would 
be the inevitable result of the execution of the act of 
1881 by the acceptance of the new bcmds, as the old 
ones are required to be given up and cancelled. 

It is then charged that the combination supplied 
agents, called a " powerful, active and efficient lobby,^' 
with the means of corrupting the Legislature, or mem- 
bers thereof, one railroad company alone furnishing 
fifteen thousand dollars. It is averred as a fact that 



202 NASHVILLE: 



Lvnn V, Polk. 



large quantities of bonds, as ranch as six hundred 

I 

thousand dolhirs, were furnished by the combination to 
be used in overcoming the majority against the pro- 
posed settlement. It is charged that members of the 
Legislature were invited by the agents selected to en- 
gage in speculations in these bonds, and many yielded 
to the temptation. The necessary capital and bonds 
are charged to have been furnished by the combina- 
tion, and the profits, the amount of which depended 
on the vote of these legislators, it is charged were 
divided among the parties concerned. 

The vote on the passage of the bill in the Senate 
is given, showing that it was at first defeated by one 
majority on the 1st day of April. A motion for re- 
consideration was made, and, on the 5th of April, the 
vote was reconsidered, and the bill passed by a ma- 
jority of one vote, being, as the bill says, the vote 
of Senator Smith of Fentress, who changed from the 
negative to the affirmative, and thus gave the bill the 
majority of one. It is then stated, in substance, that 
in this he voted contrary to a pledge given on his 
nomination for his place — a pledge kept up^ or not 
withdrawn, during his canvass; and that, pcndinpj the 
motion to reconsider and the final passage of the bill, 
no new argument or fact addressed to his reason or 
light shed on his conscience, was presented to him 
whicli could have chang«^d his convictions and absolved 
him from his pledges to his constituents; that, by 
his own admission, he was offered fifteen thousand dol- 
lars to vote for the bill. It is then charged, on in- 
formation and belief, that money and State bonds, and 



DECEMBER TERM, 1881. 203 

Lynn v, Polk. 

profits in speculation on State bonds, were offered by 
said lobby to certain members of the Legislature, who 
received the same, in consideration of their votes in 
fiivor of the passage of said bill. It is then charged, 
on information more particularly, that one Senator re- 
ceived ten thousand dollars for his vote in favor of 
the bill ; another fifteen thousand to do so. Other 
fects and circumstances are added tending to sustain 
the charge, clearly intended to be made, that the pass- 
age of the bill was obtained by means of bribery of 
members of the Legislature. 

The substance of all this is, fairly understood, to 
charge, that by means of the pi-ofits on bond specu- 
lations (the bonds furnished by the combination), votes 
Were obtained for the bill sufficient to secure its sup- 
port and passage. And especially is it to be inferred, 
from the statements of the complainants in their bill, 
that the Senator who changed his vote on reconsider- 
ation was infliuenced to do so by the use of consid- 
erations other than reasons, or arguments to his judg- 
ment or conscience. This, in connection with the 
Buggestion that he is charged to have admitted that 
he was offered fifteen thousand dollars to vote for the 
bill, and the previously stated facts, can only fairly 
mean that his vote was changed by the influence of 
gain and not legitimate argument. In other words, 
that he was in some way bribed. 

Taking all the charges on this subject, they pre- 
sent the question fairiy, though not as fully and defin- 
itely stated perhaps as might be, of a charge of bribery 
of sufficient members of the Legislature, who otherwise 



204 NASHVILLE : 



Lvnn V. Polk. 



would not have voted for the bill, to procure its ulti- 
mate passage. 

As I have said, some of the facts that raise this 
question are not as definitely stated as they might be; 
but under the cases we have before referred to, as 
this case stands before us, even an equity defectively 
stated will reverse the decree of the chancellor and 
sustain the bill in court. If defects are found, they 
are matter for ameildmeut in the court below. 

Assuming the charge to be, that a majority was 
obtained for the bill by bribery, or the purchase of 
votes enough to secure its passage, the question pre- 
sented for our decision is, Will these facts, if proven 
on definite allegation, if not so made now, furnish 
any ground on which a court of equity will enjoin 
the completion of the contract, which is authorized by 
the act so passed, by the board created to carry it 
into effect ? 

I may say in the commencement on this subject, 
that it presents no little difficulty, as I think, whether 
the one side or the opposite shall be attempted to be 
maintained. Much of weight may be presented on 
either side, and much that demands the gravest thought 
on the part of a court before a satisfactory conclusion 
can be reached either in the affirmative or negative. 

• 

Certain, to my mind, the argument is not all on the 
side of the negative. I think the cases that have 
been cited before us, and the arguments so ably urged, 
do not fairly present the real question involved. It 
is not whether a law of the Legislature may be shown 
not to be a law, by showing the members of the 



DECEMBER TERM, 1881. 205 

Lynn v. Polk. 

Legislature bad been procured to vote for its passage 
by means of bribery ; but, whether a contract, if ob- 
tained by such means, clearly shown, or admitted for 
the purposes of the argument and decision of the 
question raised, as in this case, would be ground on 
which a court of equity could be invoked to prevent 
its execution and completion, so as to fix a liability 
and charge upon the property and estate of the tax- 
payers of the State. In other words, whether the 
parties charged to have bribed the members of the 
Legislature, shall be permitted to have the nefarious 
scheme consummated into a complete and executed con- 
tract; and the taxpayer, on whom the liability to pay 
and bear the burden of the contract thus imposed, has 
no remedy, and no possible means of legal redress or 
legal help against the threatened wrong to be inflicted 
on him. If the aifirmative be true, and there is no 
remedy, it would strike every one that it is a radical 
defect, either in our legal machinery, or in our reme- 
dial justice as expressed in our system of jurisprudence. 
Can it be possible that corruption is a means legally 
effective, with no legal check in our law against it, 
by which contracts may be fastened on the State, and 
her people have to respond to the burden by paying 
their money, the result of hard toil and unremitting 
industry, and her courts be unable to afford any rem- 
edy? I confess, with a case standing as the case 
made in this bill stands,' the facts, for the purposes 
of this opinion, to be treated as admitted, I can but 
feel that it is the imperative duty of this court to 
establish a principle, if not forbidden to do so by the 



206 NASHVILLE: 



Lvun V. Polk. 



Constitution or f^ome imperative and controlling reason 
found in the nature of things, or controlling interest 
of a wide- reaching public policy, top weighty to be 
disregarded, — to find a remedy and fearlessly apply it. 
Whether there be in our system of constitutional juris* 
prudence, or in the nature of the thing, fairly con- 
sidered, or in weighty and all-contrqlling necessities of 
public policy, such a barrier as indicated, are questions 
demanding the deepest consideration, the profoundest 
thought of the judge, and if the answer be in the 
affirmative, he should submit and yield to the consid- 
erations that compel such a conclusion. But if not 
thus compelled, the highest mandate of duty is to as- 
sert the contrary, and boldly maintain the right sus 
he may find it. 

I may say further here, that in my judgment the 
question does not involve in any proper sense any in- 
vasion of the province of a co-ordinate department of 
the government on the part of this court, nor any 
inquiry into the motives of a Legislature, or of any 
member of that body, in any accurate use of the term 
motive; but that, in fact, it only involves questions 
of fact, that might well be examined by a cou-rt, un- 
der proper limitations, in order to ascertain and de- 
clare the result, as bearing on the right to obtain the 
contract proposed, and the benefits in this branch of 
the case, charged to have been the object and purpost^ 
of the alleged corrupt combination, which combination, 
and the use of the corrupt means stated, I am corar 
pelled to take as true, on the state of the record as 
it stands before me for decision. These benefits oo 



DECEMBER TERM, 1881. 207 



Lvnn t;. Polk. 



the part of the railroad corapuuies are stated definitely 
to be, the dismissal of a suit for large sums against 
their property now pending on appeal, and an aban* 
donment of the right thus claimed. On the part of 
the holder of the bonds, they are to secure a mort- 
gage, that gives him a legal, enforceable preference in 
favor of his debt on all the revenues of the State for 
ninety years, — he giving an extension of time of pay- 
ment, and abating half the semi-annual intereKst. 

These are the parties who are to receive the ben- 
efits of the contract thus charged to have been pro- 
cured, and these parti.es are charged to have been the 
bribers of the members of the Legislature, in order 
to s?cure the advantages, great or small, which are 
stated. 

In this view the real question is, shall these par- 
ties, under this state of facts, have their work con- 
summated and sanctified, either by the approval of 
this court, or the admission that we are powerless to 
prevent the consummation? And shall the taxpayers 
of the State — our own people — be compelled to learu 
that they must submit, bear and pay all such con* 
tracts, or, in desperation, "bow the lip of honor in 
the dust," by repudiating an obligation that bears on 
its face the pledge of the '^ faith, honor and credit '* 
of the State, with its broad seal thereunto affixed, as 
the assurance the pledg-^ shall be made ijjoud? 

I frankly say, that to tuch a conclusion I would 
come slowly, and with fearful apprehensions as to either 
its correctness as a matter of law, or its soundness as 
-a matter of public policy. If compelled to so an- 



■ 

I 



208 NASHVILLE: 



Lynn v. Polk. 



nounce it, it must be with forebodings, in the light 
of history and sound legal philosophy, that would give 
to me monitions of danger and ruin to my proud 
State, before which I could but s:u11y bow, but which 
I would love to avert. 

As to how the truth is in fact on this question^ 
I can know nothing. The charges are not to be 
considered as true in fact, as if proven, but only as 
technically admitted on the record for the purposes of 
this decision. As to whether thev be true in fact, 
that depends on the proof that might be made, after 
an answer, should the case be sent back to be further 
proceeded with on this issue. For the purposes of 
this opinion, I must treat them as admitted. Assum- 
ing this, it seems to me, the question stands before 
me in this light: The party who maintains there is 
no remedy, must be prepared to maintain either that 
bribery of members of the Legislature is a legal and 
constitutional method of obtaining a contract, arid such 
contract therefore valid and binding, or that, conceding 
this is not so, then, for some cause, there is no power 
in the courts to investigate such a question. And, 
practically, the result is the same. The briber may 
have his bond, and the people, whose representatives 
have, on the assumption, been faithless to constitu- 
tional obligation, must pay the debt thus imposed, not 
only in this, but in all like cases, and there is no 
power in courts to give help or relief from this bur- 
den. If the contract is one that is not legally and 
constitutionally obtained, and one that a court would 
not on these facts, shown affirmatively in a proceed- 



DECEMBER TERM, 1881. 209 

Lynn v. Polk. 

iug in court, enforce, it does seem to me, preventive 
justice might find a remedy to stay the consummation 
of such a wrong by its completion. If so, then the 
only means to do it is by a bill in a court of chan- 
cery, where an injunction to prevent threatened wrongs 
of this character is cognizable; and the only party 
against whom that remedy could be effectively applied^ 
at this stage, is this funding board; and if enjoined,. 
the result is certainly thereby attained. 

I understand it to be conceded, probably — at any 
rate, not seriously contested, — that if these facts^ were 
shown in a case where such a contract was sought to 
be enforced by the party guilty of the bribery, it 
would be the duty of the courts to repel the claim 
and refuse the relief. To enforce actively snch a con- 
tract obtained by such means, is too shocking to the 
sense of right to receive the a.ssent of any court. It 
has been intimated very strongly by this court, in the 
case of Furyerson v. Miners and Mayiufadarers Banky 
3 Sneed, 624, that such a case would demand that 
ihe courts should disregard the auihority of an act of 
the Assembly upon this ground, as said, on the ground 
of fraud and imposition on the Legislature. And so, 
in the case of Sunbary, rf'c, R. R, Co. v. Cooper j 3-i 
Penn. St., 278, the same principle was announced. 

If this be conceded, it is, it seems to me, an 
answer to nearly all that is said in the way of ob- 
jection to the exercise of the jurisdiction by the courts 
in the arguments, either of courts or counsel. For 
this relief could not be granted, without either an 

admission of the factt or proving them. In either 
14 — VOL. 8. 



I 



^10 NASHVILLE: 



Lynn v, Polk. 



case, it would be doing the precise thing that it is 
so earnestly argued cannot 1)6 done, — that is, ascertain- 
ing the facts as to the bribery of members of the 
Legislature, and then making a decree based on these 
facts when ascertained. It follows, that if what we 
are asked to do now is forbidden, it would equally 
follow, that it would be forbidden in the case of a 
proceeding to enforce the contract thus obtained, or to 
compel the defendants in this case to issue the bonds, 
if they had refused or declined to do so. I take it 
no one would deny they might have been compelled 
to perform the duty imposed by mandamuSj if the laXv 
is a valid constitutional enactment. In such a suit, 
should it be answered the law was obtained by bribing 
members of the Legislature, and a stupendous scheme 
of bribery, such as is charged in this bill, made out, 
the question would be fairly presented: Would this 
court hesitate to repel the parties from such relief on 
such a state of facts? — supposing the case was simply 
heard on petition and an answer containing the facts, 
and stood on these as admitted. If such would be 
the result, then the court would act on these facts 
and DO others. Would not this be equally in the 
face of all that has been urged, as would be the case 
now presented? If this is not what would be done 
bv the court, and a decree would be rendered in the 
face of, and over these facts thus admitted, it must 
be on the ground that there is no remedy against 
obtaining a contract by bribery. Practically, this is 
to assume and make such contracts legal, and give 
them the stamp of the approval of the courts. To 



DECEMBER TERM, 1881. 211 



Lynn v. Polk. 



this I cannot assent. There is something wrong in 
any view that leads to such results. 

Bat I think all the arguments based on the idea, 
that to make such an inquiry as is here proposed, is 
forbidden as an invasion of the sphere of a co-ordinate 
department of government, or taking the supervision 
or control over the Legislature, are fallacious. I ad- 
mit the principle fully of the necessity of the division 
of the powers of government, and the inhibition upon 
either department intruding upon the sphere of the 
other. It is well expressed in our Constitution, art. 
2, sec. 2: "No person or persons belonging to one 
of these departments, shall exercise any of the powers 
properly belonging to either of the others, except in 
cases herein directed or permitted." 

If I can show that to do what we are called oa 
to do, does not infringe on this principle, the main 
difficulty presented is met. 

What power is exercised by the legislative depart* 
ment? Law-making power. That is, that body en- 
acts laws, in its own way, as provided by the Con- 
stitution, and for' its own reasons,- and I may add, 
moved by its own motives. All this is conceded. 
With all this we have nothing to do. That body 
legislates; that is its function. Now if we attempt 
to do this, we go out of our sphere, and into that 
of the other department. If we should attempt to 
decree what action should be taken, or what should 
not be taken, by that body, we would be interfering 
with their powers. If we should propose to enjoin 
that body, or any of its members, from acting freely 



212 NASHVILLE: 



Lvnn V. Polk. 



and from any motives it or they chose in the passage 
of a bill, we would usurp power not belonging to us. 
But to decide upon the validity of the act when done, 
or contracts resulting from it, is our province. This 
w^e do on cases made presenting the issue, and in this 
we do not legislate, nor in any proper sense control 
the action of the Legislature. We but declare their 
action valid or void. This is what is done almost 
every term of this court. But no one ever thought 
that thereby we were taking control of, or subordi- 
nating the Legislature to the power of this court in 
any forbidden sense. The Legislature might at any 
time pass precisely the same measure if it chose, not- 
withstanding our decision, or one obnoxious to the 
same objection, and this court could not prevent, and 
would have no power to interfere. We could only 
declare it void, if brought before us in another case. 
We do not, in my judgment, in adjudging and de- 
creeing upon facts proven or' admitted, perform any 
function of legislation, or exercise any power confided 
to that body; nor would we in this case adjudge 
anything against the Legislature, nor impede their fu- 
ture action in any way. We would only say, that a 
contract obtained by bribery of members of the Leg- 
islature, thus securing its passage, should not be exe- 
cuted and made binding. The same body could meet 
again, and at once proceed to sell their votes in an- 
other case, — if base enough to do it, which we would 
not presume, — and our decision would not in the slight- 
est infringe upon their freedom so to do. That body 
would be perfectly free to engage in as much corrup- 



DECEMBER TERM, 1881. 213 

Lynn v. Polk. 

tion as it chose, so far as the action of this court ia 
concerned, and our decree would not even purport to 
limit the enjoyment of this license to do wrong. 

How, then, can it be that we are in any way in- 
truding on the province of that body, or subordinating 
it to our jurisdiction in its action? No member is 
a party to this suit; nor is the Legislature. How, 
then, can that body be decreed against? The decree 
made is what is done by us. If that nowise inter- 
feres with or infringes on the powers of the Legisla- 
ture, then there is no violation of the inhibitions 
of the Constitution in exercising the jurisdiction in- 
voked. 

It might and would render it more difficult for 
corruption to successfully attain its ends in the future. 
That is no undesirable end, however; but that would 
only be because such acts might be subjected to the 
scrutiny of courts. It might, for this reason, operate 
as a check on such practices in the future.; but this 
would only be a result, it would not be forbidden by 
our decree. By the decree made in such a case, the 
only parties controlled or affected by it would be the 
Board in its action, — the effect of which will prevent 
the parties charged with the bribery from reaping the 
reward of corruption. They would be controlled, and 
their scheme defeated. But the Legislature would be 
as free and unaffected in any constitutional function, 
as before the decree. Can that which leaves that 
body with all its powers — does not exercise one of 
them, or prevent their exercise — be in fact an infringe- 
ment on the sphere of action of that body? I con- 



214 NASHVILLE : 



Lynn v. Polk. 



fes8 I am unable to see how this effect shall follow; 
therefore, cannot see the force of the argument. 

What would we do ^in this case, more than we 
would do in an indictment for bribery, charging that 
the defendant bribed a member of the Legislature with 
intent to influence his vote? To do so, is made a 
felony by sec. 4797 of the Code. Would we not 
hear proof that the member had received the moneys 
for the purpose stated? Members would be no party 
to the proceeding, but that would not be heard as an 
objection. If, however, such an inquiry is to control 
the Legislature; to subordinate it to the courts; to 
infringe on its province and powers, then the Consti- 
tution would forbid the inquiry ; and the law author- 
izing such a prosecution is void. Such a prosecution 
could never be made out, except by showing that the 
member, or members, received the money — accepted 
the bribe ; for there could be no bribery without 
this. It would only be an offer to bribe; which, 
also, is a felony by the same statute. This demon- 
strates that such an inquiry is not unconstitutional — 
not an intrusion by one department on the sphere of 
another; for this can no more be done in a criminal 
than in a civil case. Until a difference can be shown, 
the argument cannot be met. 

This, it seems to me, disposes of all the arguments 
drawn from this source. If it is not forbidden by 
the constitution to prove in court the fact that a 
member of the Legislature has been bribed, even where 
he is not a party to the proceeding in such a ca«e, 
it is not forbidden in any case. If no constitutional 



k. 



DECEMBER TERM, 1881. 21& 

Lynn v. Polk. 

iDbibition, then it must be rested on the ground of 
indelicacy, and legislative regard for the feelings of the 
member or members, and that is as much applicable 
to the case of an indictment as in this case. The 
ends of public justice would be held to override all 
objection on this score. Would not the ends of pub- 
lic justice be equally served in this case, conceding 
the facts to be as charged? Would not justice to the 
whole people of the State demand that no such con- 
tract be fastened on them ? What would an ordinary 
case of bribery in a petty case, be in this aspect, as 
compared with a debt of twenty-seven millions, and a 
mortgage on the revenues of the State for eight hun- 
dred and ten thousand dollars annuallv? 

I may as well say here, that the fact that this is 
a renewal of an existing debt has no bearing on the 
legal question. If the inquiry cannot be made in this 
case, it cannot be done in the ca^e (»f the creation of 
a new debt. The result would be, thiit a Legislature 
might, under this principle, be bribed to issue bonds 
to the railroads of the State for fifty millions, and 
pay a majority of the members one- half of the bonds 
to pass the law, and they might take the bonds, sell 
them, and the people be bound to pay them ; or re- 
pudiation, which is no legal remedy at all, l)e the 
only resource — no help anywhere else. The facts might 
all be abundantly susceptible of proof, or proven, and 
yet the inquiry could not be made ; the debt be fixed 
all the same. From such a consequence I am com- 
pelled to shrink. 

But more. The principle goes further. If the 



216 NASHVILLE: 



Lvnn V. Polk. 



Legislature should put in the face of the enactment 
authorizing the ijjsue of the bonds, that the law was 
passed in consideration of the corrupt contract, the 
bonds would be equally binding, especially in the hands 
of a third party, cm it be that parties like this fund- 
ing board would not be prohibited from executing 
bonds authorized by such a law? No one will affirm 
it would not be done. If this is conceded, the whole 
question is conceded. For to do this the court would 
simply do what is now proposed ; finding the fads 
admitted, or clearly proven, declare wlmt is the result, 
and decree that result. There is no escape from this 
conclusion, as I think. 

The illustration given of the supposed working of 
the principle, in the argument of the other side, that in 
one case the proof would be made by a mere pre- 
ponderance, and the contract held void, and in another 
less fek ill fully concocted, the proof would fail, and so 
the act be good in one case and bad in the other, 
has no force in this cast*, where the remedy is pre- 
ventive, and goes to the decision of the whole contract. 
It would be stopped at its source, and no more cases 
could arise out of it ; and I confine ray opinion to 
the very case before me, not to another. 

I confine the whole operation of the rule I Avould 
establish, to the obtention of contracts bv individuals 
from the State, or other public agencies, by means of 
briberv. With these limitations it can be made ef- 
fective, and will harm no one — might expose bribery — 
but no court can feel that that is not a most desirable 
end ; certainly not a thing to be sheltered from exposure. 



DECEMBER TERM, 1881. 217 

Lynn v. Polk. 

If the constitution forbids this inquiry, it can never 
be made by the courts in any case; and if it does 
not, it ought to be made in the case of contracts 
proposed to be made, if anywhere, for there is no 
other remedy. If executed in the form of the bonds 
in this case, it is idle to say the Legislature can re- 
peal the law. The contract will he* held unaffected, 
and enforced in spite of that. To say the State shall 
repudiate the debt, is not a remedy, but only the act 
of force or will, thwt cannot be coerced. That the 
member can be expelled from the Legislature is no 
remedy, it is only punishment inflicted by the State. 
To say that his ci^nstituency can refuse to re- elect 
him is equally futile; they could do that in any case. 
But it would not affect the liability on the bonds in 
any way. That would remain precisely the same in 
both cases; and so the end sought would be totally 
ineffectual, and no remedy at all. It certainly is al- 
most farcical to talk of inflicting the penalty of non- 
election on a member who has ten or fifteen thousand 
dollars corruptly in his pocket, for his vote. He could 
well afford to stay at home on these terms. Such 
:iD argument would be 'cruel mockery to a burdened 
people, when that burden was fixed on them by cor- 
ruption. It would be as appropriate to say to a man 
whose name had been forgeJ to a note of ten thou- 
sand dollars, that his remedy was complete, when the 
State had indicted the forger and convicted him of 
the forgery, but you must^pay the forged note all the 
same. Is not that this case? 

The cases to which we have been referred as de- 



218 NASHVILLE: 



Lvnn V. Polk. 



ciding, or laying down a principle against the power 
of a court to bear evidence of bribery, on an issue 
of this kind, are the well known case of Fletcher v. 
Peck, 6 Cranch, 87 ; Sunbury Erie Railroad ' Co. v. 
Cooper, 33 Pa. St., 278; Wright v. Defrees, 8 Ind., 
302; Humboldt Co. v. Churchill Co. 6 Nevada, 40; 
Slack et al. v. Jacobs et qL, 8 AV. Va., 712; 38 Cal., 
189; 25 Mich., 99; 22 La. AnnL, 545; 5 S. Car., 
312; 49 Mo, 601; People v. Draper, 15 New York. 
We h}ive also the view of Judge Cooly, Const. Lim., 
225, and perhaps some others. 

All these cases to which we have been referred, and 
which have either decided or argued that no inquiry 
can be made as to the question of bribery of a mem- 
ber of the Legislature, have gone on two grounds : 

First. That it was in violation of the principle of 
a separation of our government into departments ; and 

Second. That no inquiry into the motives of the 
Legislature could be make. 

I shall not further notice the first. The second, 
I think, is a mistaken view of the question, as ap- 
plied to the investigation like the present. What is 
the motive that prompts an act? It may be defined 
to be, tho last and controlling impnse that impels to 
the act, or all the impulses combined that so pn)mpt. 
If this be correct, then I say motive is internal, sub- 
jective, to use the language of philosophy, a thing we 
cannot ascertain — can only approximate at best, or in- 
fer from conduct. This is the onlv accurate sense i» 
which the term can be used. In this sense I frankly 
concede tliat the motives of a Legislature, or any mem- 



DECEMBER TERM, 1881. 219^ 

Lynn v. Polk. 

bor of it, cannot be inquired into by a court. It is 
beyond the range of his power. But it is a misnomer 
to say, that an inquiry into the fact of bribery is an 
inquiry into the motives of the Legislature, or of the 
motives which prompted a member to action. 

It may have been that the weak member who ac~ 
cepts a bribe to vote for a measure, has been actuated 
and controlled at the time by the most approved mo- 
tive, such as the thought of a helpless and indigent 
family being raised to affluence and ease, and the love 
of wife and child may have undermined his sense of 
right. It may have been that an honest debt, for 
which his brother or a son were bound as sureties, 
and which he could not meet, was pressing on him, 
and he yielded from the motive to save them from 
ruin. He may have reasoned, that I am going to 
vote this way anyhow, or at any rate. I am free to 
do so if I will, and no one can question it ; there- 
fore, I may take the offered money and save those to^ 
whom I owe so much, from suffering. All this may 
be true, and if the act was controlled and prompted 
by these things, these would be the motives of his 
conduct. But if indicted for the offense and all these 
things appeared clearly, it would not change the ver- 
dict of the law; he would be convicted. Why? Be- 
cause it is not a question of motive in this sense, 
but it is a question of fact. The law says, when he 
took a bribe for his vote, that this act is corrupt, 
and forbidden, and he must suffer the peualty. The 
punishment might be in mercy mitigated by the jury, 
or the executive might pardon ; but he is guilty of 



220 NASHVILLE : 



Lvnn V. Polk. 



the entire felony defined by the statute, regardless of 
all the motives that stirred his heart, and controlled 
his act, and prompted what he did. It is not an 
inquiry at all, then, as to the motives of a party, 
when you look into the facts constituting bribery, but 
one of fact. 

The reasons are obvious. Public policy and the 
evil results of permitting such acts, require the acta 
should be forbidden ; and when the act is proven, that 
is, that the party accepted the money for his vote, 
the offense is complete, when he in good faith agreed 
to give his vote for the money and accepted it. 
Whatever might have been the motive for such a con- 
tract; .however praiseworthy it might have been to 
have desired it for appropriation to a generous or 
honest use, this does not relieve him, nor can it be 
heard to show him guiltless. A man might, it is 
true, receive money, with a view, not of bona fide 
selling his vote, but to detect and expose the party 
seeking to bribe him, and he not be guilty ; because 
he does not intend to perform his contract nor do the 
act, and does it not to be bought, but with the pur- 
pose not to be bought. Therefore, while apparently 
this would seem to be a case of bribery, it is not, 
because the intent to be bribed and to vote as agreed 
is not present, and the purpose is not to sell his vote, 
but to expose and punish another party who has such 
guilty purpose. This does not contravene in the least 
the principle, but sustains it. The act, with the forbid- 
den intent or purpose, is the only point of inquiry, not 
the motives that prompt to accept a forbidden contract. 



DECEMBER TERM, 1881. 221 

Lvnn r. Polk. 

The only inquiry in the ease before us is, rot the 
motives that prompted the members to enter into the 
contract, but did they enter into the contract with 
intent to vote, or agree to vote for money, as was 
bargained? If so, the bribery is made out. 

It is really an inquiry as to whether a bargain or 
contract, forbidden by lew, has been actually and in 
fact consummated — that and nothing more. So I cheer- 
fully admit that no inquiry can be had into the mo- 
tives of a Legislature in passing a law, nor is such 
inquiry possible or proper. The legislator is free to 
act from any motive he chooses, being responsible to 
his constituents only for his acts. The wisdom or 
policy of the act is for him, and we have nothing to 
do with these. In most of the cases referred to, it 
was strictly an inquiry into these that was in issue 
before the court. 

But when we come to an enactment under the rule 
in the Dartmouth College case, which is a law, plus 
a contract, superadded, then I think quite a different 
question is presented. I would confine the rule strictly 
to cases where parties obtain contracts of this class 
from the Legislature, and thus deprive all of the 
temptation to seek them by corrupt means. The fact 
that the doctrine of the Dartmouth College case has 
turned such enactments into another and different thing 
than a law, makes it, as I think, not only proper, 
but public policy of the weightiest character demands 
imperatively the distinction suggested, and the princi- 
ples settled as to the elements that enter into this 
contract sustain it. 



222 NASHVILLE : 



Lynn t\ Polk. 



The distinction between a law as such, and a con- 
tract, or the contract' resulting from it, or found in 
it by construction, is clear. The law takes efiFect as 
the Legislature enacts, or at the time the constitution 
prescribes. It does so propia vigor e, by virtue of its 
pas^ge, . and is dependent on no other will. This 
case is an apt illustration. The enactment is com- 
plete ; the Legislature has done all it can do, but it 
is not a contract — it may never be; other p:\rties, the 
bondholder, must act, and that freely and voluntarily, 
before it is a contract. They must assent to it, ac- 
cept and execute it, before the contract comes into 
existence. The idea that a law can be made by the 
independent or conjoint act of these bondholders, is an 
absurdity. The Legislature alone can make laws, but 
they cannot enact contracts. That body can propose 
them, but the creditor or contractor, the other party, 
must complete the work ; without his act it can never 
be done. 

But to go further. It is settled by all the cases, 
that there must be, not only parties and assent, but 
also a consideration, in order to make it a contract; 
without this, it is a mere gratuitous license or privi- 
lege, and is not a contract. In addition, it has lately 
been held, that even all this may exist, and yet if 
the consideration be immoral, as in the case of an act 
of the Legislature for a valuable consideration incorpo- 
rating a lottery: Stone v. JUsmssippi, 191 U. S. R., 
820 ; that in such cases it is not a contract, but such 
acts of the Legislature may be repealed, and the con- 
tract not protected by the constitution of the United 



DECEMBER TERM, 1881. 223 



Lvnn V. Polk. 



States from impairment, because either not one, or not 
a valid one: See cases, Christ Church v. Philadelphia. 
24 How., 300; Newton v. Gom., 100 U. S., 561, and 
other familiar capes. 

From this it follows clearly, that all the affirma- 
tive elements that make a contract between individuals, 
enter into a contract resulting from an enactment of 
the Leglshiture — parties, assent, considenition — and they 
are vitiated by being against sound morality or public 
policy. 

If all these aflSrmative and negative elements enter 
into this contract by law, then on what principle can 
it be,, that the negative elements that destroy or defeat 
all other contracts, can be held as not applicable to 
such contracts? Fraud in obtaining them, bribery of 
an agent, who is authorized by his principal to act 
for him, will always, and in every other case, enable 
the party to be charged by the stipulation, to avoid 
it. Why is it, that the people who are to j)ay, are 
the only parties whose mouths are shut and cannot 
be lieard, and legislators charged with the most sacred 
trust, are to violate it with impunity? If a portion 
of these bondhoMers shall authorize an agent to fund 
their bonds, if in his judgment he deemed it best, 
and solemnly enjoin it upon him to investigate :uid 
act fully and honestly for their interest, but the agents 
or officers of the State, or any party concermd, shoud 
bribe him by paying him ten thousand dollars to con- 
sent to fund, no man wouhl say his princij)al could 
not avoid tlia act, whenever he could be heard to 
present his claim in court. 



224 NASHVILLE : 



Lynn v. Polk. 



. On what principle is it that all the parties to this 
attempted contract can be heard to assert the baleful 
influence of a bribe on a contract, but the people who 
are to meet and pay the debt thus sought to be fas- 
tened on them? I confess I am unable to see this, 
or any sound or controlling reason why su(5h a rule 
should be established. It is not the law tli:it is at- 
tacked in this view, but the contract authorized to be 
made by it, and this has all the elements in it of a 
private contract, or one made between individuals. 
Why shall it not be vitiated by what vitiates all other 
contracts, when you come to deal with it as such, 
and not as a law? 

It is procured by corruptly purchasing the mem- 
bers of the Legislature. They were representatives of 
the people. That is what they are to be by the 
constitution. They are required, by the very char- 
acter given them in that instrument and the /Very 
nature of the thing to be done, to act freely and of 
choice for the people. They are solemnly sworn " to 
vote without fear, favor, affection, partiality or prejudice.'* 
But when a man sells his vote for money, he votes 
under the compulsion of a contract, corrupt and for- 
bidden, and thus ceases to be the representative of hia 
people, and becomes the agent and tool of 1ms pur- 
chaser. Is this the act he is authorized, required and 
sworn to do under the constitution? Is it not in 
violation of and outside all his constitutional duties — 
an utter abandonment of them? If so, why should 
this act be held as sacred and binding, when it makes 
an irrepealable contract, as if done in the precise line 



DECEMBER TERM, 1881. 225 

lA'nii V, Poik. 

of constitutional requiremet, or why shonld we hesitate 
to have the gross violation of faith exposed by inves- 
tigation? Why, by refusal to act, give immunity to 
him, and impunity to the corrupt briber ? The mem* 
ber will have an opportunity as a witness to deny the 
charge, and explain his conduct, if innocent. If guilty, 
he ought not to be shielded by any narrow technical 
rule. I concede that if the constitution forbids, he 
must go free; but if the rule is to be deduced from 
common law principles, based on sound public policy, 
where I am free to adopt that which the best inter- 
ests of the State shall demand, then I cannot hesitate 
to say, that all history is full of the lesson, that Re-- 
publics fall from this fruitful source of decay, that 
eaps their foundation more surely than by all other 
means, and I would guard my own State from its 
fearful power for ruin. I cannot believe that our con- 
stitution can rightly be made to shelter bribery as an 
accredited means of procuring contracts from the Legisla- 
ture. ' If it does, it is time, for its amendment indeed. 
The length of this opinion forbids a full discussion 
of this question. I would hold, that in all cases of 
private contracts, or contracts obtained by individuals 
for their own benefit or advantage, where it could be 
clearly shown the assent of the members or sufficient 
to pass the bill, was procured by bribery, the con- 
tract, as between the State, or her taxpayers and the 
parties so bribing, is one that may be avoided, and on 
proper case, the courts should fearlessly apply the remedy; 
no restraints of delicacy should make them hesitate. 

I confine my opinion strictly to the case before me,. 
15 — vol.. 8. 



226 NASHVILLE : 



Lynn v. Polk. 



and to like cases — to acts of the Legislature making, 
or proposing to make contracts — expressly denying 
the application of the principle to legislation in the 
general sense, or in any cases except the ones indicated. 
Such an application of the principle, I think, is per- 
fectly safe, and can do no injury to any one — certainly, 
as I think, is no infringement upon any afSrmation, 
or implied inhibition of the constitution. 

It is conceded that I have gone on delicate ground, 
where the steps must be cautiously taken. But it is 
like the case of a surgeon who finds his patient either 
threatened or suffering with a cancer near a delicate or- 
gan. He might well hestitate, but when it was settled 
that the knife was the only remedy he could apply, he 
would be unworthy of his place if he did not use it. 

So I would in this case cut, as the only remedy, 
though I should have to go close even to the bleed- 
ing heart, to prevent the approach of the eating can- 
cer of corruption and bribery to our legislative halls, 
or if it be true, as charged, it has already come, to 
crush out its first footfalls on the soil of my State, 
by all the power and agencies of the judiciary depart- 
ment, and thus fix upon it the seal at least of judi- 
cial condemnation, strong and deeply engraven in our 
jurisprudence. 

The result is, that I hold the coupon clause un- 
constitutional and void ; that the funding board should 
be enjoined from issuing the bonds proposed, and that 
on the charges of the bill, as to bribery, there is an 
equity ; and the chancellor's decree should be reversed, 
and the case remanded. 



DECEMBER TERM, 1881. 227 



Lynn V. Polk. 



McFarland, J., said: 

No case of greater importance, I suppose, has ever 
been presented to this court; and no case has prob- 
ably ever been argued before it more thoroughly or 
with more learning and ability. It demands a most 
earnest, careful and deliberate consideration by each 
member of the court. It indirectly involves political 
questions upon which the people of the State have 
been divided, and in regard to which deep feeling ex- 
ists. As citizens of the State, the members of the 
court are not supposed to be entirely without such 
opinions upon these questions as may more or less 
affect their judgments; but the stronger instinct of 
every fairly educated and fairly balanced judicial mind 
IS that sound principles of law shall be maintained. 
The bill presents certain well-defined legal questions. 
We have only to respond to these questions from a 
judicial standpoint, and as far as possible in a judi- 
cial spirit, and our duties are performed. I regard 
it necessary for the proper discharge of my duty to 
«tate my own views in a separate opinion. In dis- 
charging this duty, I am sure I have never felt more 
impressively the weight of individual responsibility. 

The object of the bill is to prevent the execution 
of an act passed by the General Assembly, on the 5th 
of April last, authorizing the funding (by the issuance 
of new bonds) of much the larger part of the present 
bonded indebtedness of the State. The aggregate of 
the new bonds thus to be issued, it is said, will be 



228 NASHVILLE: 



Lyiin t;. Polk. 



about twenty-seven millions of dollars. From this wilt 
be seen the magnitude of the power this court is called 
upon to exercise. We cannot, however, for this rea- 
son, shrink from the discharge of the duty the law 
imposes. I will, therefore, proceed to submit the re- 
sults at which I have arrived upon the various ques- 
tions, in the order most convenient to myself. 

Among other things, the bill charges that suits 
were pending against certain railroad corporations of 
the State, brought by holders of Tennessee bonds, 
claiming a lien on the roads; and that during the 
siession of the last General Assembly a conspiracy was 
formed between said bondholders and said railroad com- 
panies to procure the passage of the act in question, 
with the understanding that in such event the bonds 
would be funded and the suits a^inst the railroads 
dismissed; and that for the purpose of carrying out 
this scheme, a large and powerful lobby was organized, 
and supplied with large sums of money and bonds ta 
corrupt and control the Legislature, and procure that 
body to pass the law in violation of their pledges to 
the people and of the people's wishes; and that va- 
rious improper influences were brought to bear upon 
members of the Legislature; and that the final pass- 
age of the bill through the Senate, by -a majority of 
one vote, was procured by bribing two of the Sena- 
tors who voted for it, one receiving ten thousand and 
the other fifteen thoussmd dollars for his vote. 

The question is, Can this court take jurisdiction^ 
and, upon proof of these allegations, set the law 
aside ? 



DECEMBER TERM, 1881. 229 

Lynn t;. Polk. 

If half we read in the public prints in regard to 
the wholesale corrupting of legislative bodies by pow- 
erful moneyed organizations be true, it is a source of 
the gravest apprehension to every right-minded citizen. 
If allowed to go unchecked, the danger cannot be 
overestimated; and the progress of such a monstrous 
evil should be resisted at all points and on all occa- 
sions with a courage and firmness commensurate with 
the danger. It is to be hoped that the practice 
does not exist to such an extent as is often repre- 
sented; and, at any rate, the intelligence, honesty and 
courage of the people will in the end triumph over 
all such conspiracies against republican governments. 

The question is whether this court has jurisdiction 
of the question. I am satisfied, upon the most care- 
ful consideration, that it has not. This seems to me 
to be manifest from the organization of our form of 
government. The government of the State is divided 
into three departments — the executive, legislative and 
judicial. The three combined represent the entire sov- 
ereignty of the State. Powers vested exclusively in 
one department, cannot rightfully be exercised by the 
other. The legislative power is certainly vested .in' 
the General Assembly, and it is certain that the courts 
can exercise no part of this power; nor can either 
of these departments rightfiilly undertake to determine 
with what degree of fidelity the other has met its 
obligations. For this court to exercise the jurisdiction 
invoked, would be to assume that the co-ordinate de- 
partments of the government are liable to corruption' 
but we are not. If we were to take jurisdiction, anrf 



230 NASHVILLE: 



Lynn v. Polk. 



determine that this act was passed by bribery and cor- 
raption, the Legislature would have the same right ta 
enquire whether or not our judgment was procured by 
the same means. These departments^ within their 
spheres^ are so far omnipotent that they possess all 
the powers of the State belonging to that department,, 
.and in the exercise of these powers they are inde- 
pendent, neither being subject to the will or super- 
vision of the other. The members of the General 
Assembly, like the members of this court, are respon- 
sible to the people who elected them for the manner 
in which they discharge their trust; and they may 
be impeached in the manner pointed out by the Con- 
stitution. The people may relieve themselves of the 
consequences of the corrupt and faithless acts of their 
representatives, but it was never contemplated that one 
department should sit in judgment upon the conduct 
of the other. If so, we might set aside pardons 
granted by the Executive, upon the ground that they 
were corruptly granted, and the executive department 
might in turn refuse to permit our judgments to be 
executed, upon the ground that they were corruptly 
rendered; and from the collision and conflict, confu- 
sion and chaos would result. If we should take juris- 
diction of this question, and an issue of fact be formed,, 
it would then have to be tried upon the rules of tes.- 
timony applicable to civil cases; only, a preponderance 
would be necessary to establish the allegations of the 
bill, or, as held by a majority of this court, only a. 
slight preponderance; so that, if it be shown by a 
slight preponderance of testimony that one of the Sen- 



DECEMBER TERM, 1881. 231 

Lynn t. Polk. 

ators who voted for this bill was corrupted, we would 
then be compelled to declare that the act was not the 
will of the Legislature, although it could not appear 
that the bribed member might, notwithstanding the 
bribe, have voted' for the bill, and notwithstanding 
the bill was passed with all the forms of law. And, 
besides, this result would be reached in a case to 
which neither the State or the impeached member is 
a party, or has the right to be heard, and where we 
would have no right to consider whether improper in- 
fluences may have affected the other side of the con- 
troversy. 

The ground upon which courts set aside unconsti- 
tutional laws, as we shall hereafter see, is wholly dif- 
ferent. In such cases the courts simply determine 
whether there is conflict betweefn the two laws — the 
Constitution and the legislative act, — and if so, the 
former must prevail. 

The remedy, where the passage of a law has been 
improperly obtained, is to repeal it, either by the same 
or by some succeeding Legislature, and the wrong sus- 
tained in the meantime is generally not irreparable; 
and, besides, the remedy, by repealing the law, can 
be more promptly applied by the Legislature than by 
the courts. 

The correctness of this view as to ordinary legis- 
lation is conceded by the counsel for the complainants, 
but it is insisted that, as to contracts entered into by 
the Legislature on behalf of the State, the rule must 
be different ; that when a State contracts, she lays 
aside her sovereignty and contracts as an individual. 



232 NASHVILLE : . 



Lynn v. Polk. 



and all the consequences must result. That is to say, 
as the contracts of individuals may be set aside for 
fraud, the contracts of States are subject to the same 
rules. When courts acquire jurisdiction of contracts 
made by States, they apply the same rules of con^ 
struction to the State they do to the individual — give 
the same measure of justice to each. But it is a 
mistake to assume that, in making contract^:), the State 
lays aside her sovereignty so as to give the courts 
jurisdiction, without her consent, to adjudge her lia- 
bility. The State needs no such assistance from the 
courts. If its Legislature has been bribed and cor- 
rupted to assume obligations that the State does not 
rightfully owe, the remedy is, in the first place, to 
repeal the law before the contracts are complete. This 
power, with respect to the present law, is never fully 
possessed by the Governor and Legislature. If satis- 
fied that the law was procured by bribery, it is a 
question for the consideration of the Governor as to 
whether or not he will call the Legislature together 
on the subject, and for that body to determine whether, 
for this or any other reason, the law should be re- 
pealed. It does not meet the question to say that 
they will not perform this duty. They have the 
power; we have not. And even after the law has 
been executed, and the bonds issued, if it should ap- 
pear that, by corruption and bribery, an unjust debt 
has been assumed in the name of the State, its good* 
faith and honor would not require the obligation to 
be met; and whether it would or not, would be a 
question for the people, through their representatives, 



DECEMBER TERM, 1881. 233 

Lynn v, Polk. 

to consider, as the State is sovereign and cannot be 
coerced. So that, whether future Legislatures would 
recognize the obligation, would be a question for them, 
and the people in their sovereign capacity need no re- 
lief from the courts. 

But it is said, on account of a peculiar provision 
of this act, known as the "coupon feature,*' it will, 
when executed, be irrepealable, and the State, for rea- 
sons hereafter to be considered, then without remedy, 
and hence, unless the couJts now interfere, the obli* 
gations entered into under a law thus enacted, will be 
fastened upon the people, and no means left *by which 
they can resist them. I will consider this question 
when I come to the constitutionality of the "coupon 
feature,*' and it will then appear that, in my view, 
there is a remedy against such an emergency, but not 
the remedy we are now considering. 

To assume the jurisdiction now insisted upon would 
not only be, as I think, wholly unauthorized upon 
principle, but directly in the face of all the judicial 
opinions that have been expressed upon the subject, 
which, considering the sources from which these opin- 
ions have emanated, it would be bold if not rash to 
disregard. I refer to Chief Justice Marshall in Fletcher 
V. Peckj 6 Cranch, '87; Sunbury and Ef*ie R, It, Go, 
V. Coop^, 33 Penn. St., 283; Wright v. Defrees, » 
Indiana, 298; McCullough v. The State, 11 Indiana, 
424; Ex parte Netcman, 9 California, 515; Slack v. 
Jacobs^ 8 West Va., 612; State v. Hays, 49 Missouri, 
604; People v. Draper, 15 N. Y., 545. There is 
scarcely to be found an intimation to the contrary. 



234 NASHVILLE: 



Lvnn V. Polk. 



■» 



Whether a bill may be maintained to restrain in^ 
dividiials or corporations from receiving the benefits of 
their own fraud practiced upon the Legislature, need 
not be considered, as I do not think this bill caa 
take that shape, as the bondholders, or those supposed 
to be benefitted by the law, are not parties, the fund- 
ing board only being defendants. 

I come now to consider whether this act violates 
the Constitution of the State. Several objections have 
been taken to it on this ground, but the argument 
has been addressed mainly to what ifr known as the 
"coupon feature" of the act, and this question, i» 
importance, undoubtedly overshadows all others. 

The bonds authorized by the act, as I have said, 
will aggregate about twenty-seven millions of dollars. 
They are to run ninety-nine years from the 1st of 
July, 1881, redeemable at the pleasure of the State at 
any time after five years. They are to bear' interest 
at the rate of three per cent, per annum, evidenced 
by coupons payable semi-annually in New York. The 
3d section provides that the coupons, on and after 
their maturity, shall be receivable in payment of all 
taxes and debts due the State, except for taxes for 
the support of common schools an'd for the payment 
of the interest on the common school fund, and said 
coupons shall show upon their face that they are so re- 
ceivable. The 9th section enacts that the bonds shall 
be substantially in the form there set out. The form 
• of the bond there set out contains this provision, to- 
wit: *'The coupons of the bonds, as they become due, 



DECEMBER TERM, 1881. 236 

Lvnn V, Polk. 

are receivable for all taxes and debts due the State 
of Tennessee." 

I will not stop- to consider the effect of the dis- 
crepancy between the 3d section and the form of the 
bond set out in the 9th section^ — ^the former making 
the coupons receivable for all taxes and debts vnth 
certain exceptionSj and the latter making them so re- 
ceivable without exception. I will assume that the 
third section is to prevail. 

The purpose of these provisions is manifest. The 
stipulation that the coupons are receivable for taxes 
and debts due the State, especially as incorporated into 
the bonds and coupons themselves, will, if valid, con- 
stitute part of the contracts, and will be within the 
protection of the clause of the Constitution of the 
United States prohibiting States from passing laws im- 
pairing the obligation of contracts, — a provision which 
the Federal courts have jurisdiction to enforce, aqd 
this notwithstanding the Constitution of the United 
States denies to those courts jurisdiction of such suits 
directly against the States. The Federal courts take 
jurisdiction of the oflBcers of the State, and enforce 
this provision of the Constitution, notwithstanding the 
contract to be enforced be the contract of a State and 
the State be the real party in interest. This is the 
well-settled law of the Supreme Court of the United 
States: Osborne v. IJ. 8. Banky 9 Wheat., 7«38; Dodge 
V. Woohey, 1 8 Howard ; Bank v. Deholi, ibid., 380 ; 
Wurman v. Nichol, 8 Wallace; Hartman v. Greenhow, 
12 Otto; Davis v. Gh*ay, 16 Wallace, and many other 
cases. So that, if the act be within the power of 



236 NASHVILLE: 



Lynn i;. Polk. 



the Legislature and the bonds be issued, the provision 
in regard to the receivability of the coupons for taxes 
and debts due the State, cannot be repealed so as to 
affect the holder's right during the ninety-nine years, 
or so long as any coupons remain unpaid, and any 
attempt to so repeal must be declared inoperative and 
void by the courts of the State in obedience to the 
mandate of the Federal courts. The holders of the 
bonds and coupons, therefore, would have this security: 
that 60 long as each successive Legislature shall levy 
uny tax — especially any tax over and above taxes for 
the support of common schools and interest on th^ 
school fund — they would have the prior right to ap*- 
propriate it before it reached the treasury by tender- 
ing the coupons in payment. The result, therefore, 
would be, that no future Legislature could, on any 
account, omit to levy the necessary tax to pay the 
outstanding coupons in addition to the current expenses 
and other debts of the State; and besides, when so 
levied, the holders of the coupons would have a prior 
olaim on the whole fund, and whatever loss or delay 
might occur would fall, or be liable to fall, upon the 
eurrent expenses and other debts of the State. Her 
ftiture Legislatures would have no other alternative, 
unless they refuse to levy the necessary taxes to sup^ 
port the government. In short, the effect of the act 
is to place the question of the payment of these cou- 
pons, and the manner of their payment, beyond the 
control of any future Legislature, or even of the peo- 
ple themselves in convention assembled, for ninety-nine 
years, if any portion of the coupons remain unpaid 



DECEMBER TERM, 1881. 237 

Ljnn V, Polk. 

80 long^ and to take from such future Legislatures all 
right to control the revenues raised by them to the 
extent of the sum necessary to pay the coupons, or 
over eight hundred thousand dollars annually ; and 
fiirther, to vest in the Federal courts jurisdiction to 
enforce the demand. The objection is not to the 
power of the Legislature to make, by law, coupons 
receivable for taxes. This power is not denied. The 
objection is to the power to stipulate by contract that 
the law shall not be repealed. The question is, has 
one Legislature the power to make such a stipulation 
binding upon any future Legislature? I do not favor 
the doctrine, that courts may declare acts of the Leg- 
islature void upon the idea that they violate in some 
general and undefined way the priuciples of republican 
government. I also adhere to the doctrine, that, in 
general. State constitutions are to be construed as lim- 
iting and restricting, but not as granting, legislative 
powers. If the power be in its nature legislative, 
then it belongs to the legislative department, unless 
some limit or restriction be found either in the letter 
or spirit of the Constitution; and in applying these 
limits and restrictions, I have never been disposed to 
''stick in the bark," or to be too liberal or hyper- 
oritical in construing the Constitution. But when I 
regard a vital principle violated, then I deem it my 
daty to declare the act inoperative, without resoJting, 
out of mere deference to the Legislature, to extreme 
or refined subtleties to sustain it. 

I take it to be a sound and well-recognized prin- 
ciple, plainly deducible from our Constitution, that the 



238 NASHVILLE: 



Lynn v, Polk. 



legislative power vested in each General Assembly as 
the representatives of the people to legislate upon any 
subject, is limited to the two years for which they 
are elected, and it is clearly beyond their power to 
enact any law on any subject that may not be re- 
pealed by the same or any subsequent General Assem- 
bly. This 1 take to be a self-evident proposition, 
and one that will not be denied. One generation 
cannot legislate for the next. The people, through 
their representatives, have at all times the right to 
ehange their laws to meet exigencies as they arise. 
But, while this is admitted, it is maintained that legis- 
lative enactments may also involve elements of contract 
that cannot be changed at the will of the sovereign 
power. The laws may be repealed, but the obliga- 
tion of contracts cannot be impaired. Irrepealable 
laws may not be passed, but States may make con- 
tracts obligatory upon the people in the future. This 
is beyond question. By the custom of civilized na- 
tions, they have the right to contract public debts, 
not only obligatory upon the people who contract the 
debt, but upon future generations, otherwise they might 
in times of war be unable to preserve the life of the 
nation itself. But States, in creating such debts, act 
as sovereign, and cannot be coerced into payment. 
The faith, honor and credit of the State and of the 
people are pledged for the payment of the debt, but 
the people, through their representatives in each suc- 
cessive Legislature, must be left to redeem their part 
of the pledge. It is not contended that there is any 
mode to coerce the State into the payment of an ordi- 



DECEMBER TERM, 1881. 239 

Lynn t». Polk. 

nary bond^ — I mean one "without the "coupon feature.'* 
But it is equally certain, as has been shown, that 
there is a mode by which payment of coupons of the 
character we are considering may be enforced. 

The provision in regard to the coupon is not only 
a law regulating the collection and disbursement of 
the revenue and the conduct of the State's officers^ 
but, under the construction put upon similar provisions 
by the Supreme Court of the United States, it be- 
comes part of the contract. The question, therefore, 
is, can one Legislature, in the form of a law, make 
a contract which surrenders the power of future Leg- 
islatures to enact laws for the public good? Can one 
Legislature surrender those attributes of sovereignty 
which are absolutely necessary, not only to the well- 
being of the State, but to its very existence? Stated 
in this form, there can be but one answer. No such 
powier can or ought to exist. The power, from time 
to time, to enact such laws for the public good as 
may then appear necessary, is an essential element of 
sovereignty absolutely necessary for the existence and 
well-being of the State, and cannot be surrendered. 

But, it is said, if this proposition be carried to 
its full length, it denies to the * State the power to 
issue bonds in any form ; that the power to bind the 
State by the "coupon feature '^ of the law, is no higher 
than the power to issue an ordinary bond ; that in each 
case the faith, honor and credit of the State and its 
future revenues are pledged for the payment of the 
principal and interest of the debt, and nothing beyond 
this in either case. If the power exists to make one 



240 NASHVILLE : 



Lynn v. Polk. 



form of bond, it must exist to make the other, as 
the power to provide the manner of payment must 
be co-extensive with the power to create the debt. 

If the obligation contained in the "coupon feature" 
be allowed to stand upon the same basis as the bond 
without this feature— that is, upon the faith and honor 
of the State — and bear the same construction, then 
this assumption might be correct. 

When questions of this character were first brought 
before the Federal supreme court, it was insisted that 
the clause of the Eederal Constitution prohibiting States 
from passing laws impairing the obligation of contracts, 
related to contracts of individuals^ and that mere legis- 
lative acts of the State should not be construed as 
contracts which the Federal courts were vested with 
jurisdiction to enforce against the States, especially 
when, by the Constitution, the court could not take 
jurisdiction of the State directly, but that such acts 
were no more than ordinary legislation regulating the 
Staters local affairs, and subject to repeal as other 
laws. Had this construction prevailed, then the form 
of the obligation entered into by the State would not 
be very material. The State being sovereign, could 
not be coerced to perform the obligation in either 
event; and in making such contracts, no higher power 
would be exercised in the one case than in the other. 
But, as we have seen, the decision of the queation 
was otherwise. It was held that when provisions like 
the present are enacted as to the manner of payment, 
the Federal court will take jurisdiction of the Staters 
officers and enforce the law as a contract, denying the 



DECEMBER TERM, 1881. 241 

Lynn v. Polk. 

State all right to repeal or impair it ; and virtually, 
in that event, the State ceases to be sovereign in re- 
spect to her own obligations; and hence^ in making 
such contracts, the State has surrendered her rights, 
not only to act as a sovereign with respect to her 
own obligations, but also to enact such laws as may 
incidentally affect them. And we must bear in mind 
that, by this construction thus given to acts similar 
in this respect to the ^* coupon feature^' of this act, 
the law out of which the contract results becomes 
irrepealable. The difference, therefore, between the two 
character of bonds is this: 

The ordinary bond pledges the honor and faith of 
the State. Each successive Legislature, as the repre- 
sentatives of the people, is left to meet its part of 
the obligation. In doing so, they act from the sense 
of honor and good faith which is supposed to actuate 
the people of a sovereign State and their representa- 
tives. It is for them to determine what honor and 
good faith require, but there can be no power to 
coerce their action. They are not bound by previous 
legislation further than honor and good faith n quire 
they should be bound, and of this they are to judge. 
By the issuance of the ordinary bond, the power to 
legislate in the future for the public good is in uo 
sense relinquished. 

On the other hand, the bonds with the ** coupon 

feature" not only pledge the honor and fiith of the 

State, but practically takes the matter entirely out of 

the control of the people or any future Legislature 

while the obligation lasts, not only as to the question 
16— VOL. 8. " ^ 



242 NASHVILLE: 



Lynn v. Polk. 



whether the coupons shall be paid, but also as to the 
manner of their payment. The revenues to be raised 
by future Legislatures are, to this extent, not only 
pledged, but actually appropriated and put beyond their 
control. To this extent they are deprived of all power 
of legislating upon the subject. So it is apparent that 
the powers exercised in the two cases are essentially 
different. 

Had the Legislature the power by contract to place 
the coupon provision of the law absolutely beyond re- 
peal while the coupons remain unpaid? 

It is said that the question can never arise, unless 
we suppose that future Legislatures may disregard their 
obligations and refuse to levy the necessary taxes to 
meet the interest on the debt and the other expenses 
of the Stat«. Without this, the necessity for a re- 
peal can never exist, and it cannot be presumed that 
they will thus disregard their duty. I agree that we 
are to predicate no argument upon a presumption that 
any future Legislature will violate its duty or act in 
bad faith. But the error of this argument is in the 
court assuming to decide that it will, under all cir- 
cumstances, be the duty of every succeeding Legisla- 
ture to levy the taxes to pay the coupons. This is 
not a question for the court. If a future Legislature 
should become satisfied that the debt was unjust and 
fraudulent, procured by bribery and corruption, the 
honor and faith of the State would not require that 
it should be paid. Of this the Legislature would 
have to judge. It is said that this debt is an hon- 
est ?ind just debt. If so, I trust the legislative de- 



DECEMBER TERM, 1881. 243 

Lynn r. Polk. 

partment will always so recognize it. I certainly in- 
tend to express no doubt in regard to its validity; 
but the court has no jurisdiction to pass upon the 
question. The State, as a sovereign power, must de- 
termine for itself, through its Legislature, the measure 
of justice that good faith requires it to render to its 
creditors. Of course the State has the power to repudiate 
an honest debt, but we are to presume that the power 
will not be exercised. But however just and honest iJm 
debt may be, if one Legislature has the power thus to 
tie the hands of future Legislatures as to the payment 
of honest debts, they may equally bintl them for the pay- 
ment of unjust debts. It is, perhaps, not impossible 
that Legislatures may be bribed and corrupted to en- 
ter into obligations that ought not to be binding upon 
the people of the State. In such an event, the State 
could not go into the courts to set aside its own ob- 
ligations upon the ground that its own Legislature had 
been bribed and corrupted. And when the action of 
the Federal court should be invoked to enforce the 
coupon contract and protect it from impairment, they 
would not listen to the charge that the State Legis- 
lature had been bribed to make the contract. So 
that, in such an event, the State could, practically, 
no more resist the payment of a debt created by 
bribery than any other. 

But aside from this, and assuming that no future 
Legislature will ever doubt that this is a just debt, 
will it, under all circumstances, be their duty to levy 
taxes to pay the coupons? Public debts are to be 
paid by taxation ; the creditor has no direct claim 



244 NASHVILLE : 



Lvnn V. Polk. 



against the citizen. I do not undertake to define the 
extent to which the taxing power may go ; but the 
right of the people and of the State to exist, is su- 
perior to the claim of the creditor. The creditor 
who takes the bonds of a sovereign government, risks 
not only its honor and good faith, but also the pos- 
sibility that its debts may become too onerous to be 
borne. The government must exist; its people must 
live; otherwise all ability to pay debts would be de- 
stroyed. And, whatever may be said of it, we know 
that upon the supposed want of ability to pay, or for 
other cause, the f)ower to repudiate public debts in 
whole or in part has been frequently exercised iu, 
modern times, even by the most enlightened govern- 
ments. There are infirmities attaching to all debts of 
this character. But I am not to be understood as 
advocating the doctrine of repudiation or encouraging 
any tendency in that direction. I only assert that 
the right of the State to preserve its own existence 
and good government, and the right of the people to 
support and maintain themselves, is superior to the 
right of the creditor. This principle is recognized 
even in regard to private contracts by our liberal ex- 
emption laws. In the event of war, famine or pesti- 
lence, is it possible that a Legislature would not have 
the power to suspend the payment of these coupons^ 
or postpone them, to the superior demand for the 
preservation of the State and the people themselves? 
In such an event, I do not think it can be denied 
that the power to repeal the law would exist. We 
cannot know that such emergencies may not arise 



DECEMBER TERM, 1881. 245 

■^ M - , _ ^^^ 

Lynn v. Polk. 

within the next ninety-nine years. It will not do to 
say that the Legislature that passed this act deter- 
mined that no such emergency would ever arise^ and 
that it would never be necessary to repeal it. This 
is absurd. It is said that such emergencies are im- 
probable, extreme cases that may never occur, and 
that we need not now undertake to provide against 
them. True, we need not; but we must preserve in 
the government the power to provide for such emer- 
gencies if they should occur, — the power to protect 
itself and its people in times of calamity and peril. 
Extreme cases may always be supposed in order to 
test principles. This is not arguing that the act in 
question may become unconstitutional upon such future 
contingency. The happening of such future contin- 
gency is referred to for the purpose of showing that 
the act was in excess of legislative power at the time 
it was passed. Then if it be conceded that, under 
any emergency that may reasonably be supposed, the 
power to repeal the law would exist, it seems to me 
to follow inevitably that the act, which, according to 
the construction placed upon such acts, stipulates that 
it shall not be repealed, was beyond legislative power. 
It will not do to say that the Legislature might 
make such a contract, but that we will annex to it 
the implied qualification, that upon sufficient emergency 
the law may be repealed and the contract impaired. 
This qualification necessarily destroys the whole con- 
tract. If the law may be repealed in any emergency, 
then who is to judge of the sufficiency of the emer- 
gency? Certainly not the courts. It cannot be said 



246 NASHVILLE: 



Lynn v. Polk. 



that the courts would uphold a repeal of the act if^ 
in their opinion, it was upon an emergency justifying 
it, and disregard the repeal if the emergency was not 
deemed sufficient. The considerations upon which the 
sufficiency of the emergency would have to be deter- 
mined are not judicial in their character, but purely 
political and legislative. If, then, we concede that 
the sufficiency of the emergency is to be determined 
by the Legislature, it inevitably results that they may 
repeal the law at pleasure, and the contract is with- 
out validity. 

But it seems to me that if the power to make 
such contracts be conceded, then the right to repeal 
the law and abrogate the contract would not be re- 
cognized in any emergency. The question would come 
directly within the jurisdiction of the Federal court. 
The decisions of that court, at least as they now stand,, 
leave no room for do.ubt. They say if the State 
Legislature makes the contract, and has the power to 
make it, then it cannot be impaired by any subse- 
quent legislation ; and to ascertain the meaning of the 
contract, they disregard the construction of the State 
courts and construe it for themselves. That court 
; would not undertake to enquire into the ciroumstancea 
. of emergency or necessity under which \ the State Leg- 
islature may have undertaken to repeal the law and 
impair the contract. It is said, however, that the 
jurisdiction is vested in that court, and whatever it 
might decide would be the law of the case; and we 
must presume they would decide correctly. Jurisdic- 
tion is vested in that court to enforce the Federal 



DECEMBER TERM, 1881. 247 

Lynn v, Polk. 

Constitution against State laws impairing the obliga- 
tion of contracts, and so it must determine whether 
the contract has been impaired. Their decisions are 
the supreme law upon this .subject. 

But whether our Legislature has the power to bind 
the State by the contract snpposed to be impaired, is 
not a question for the Federal Supreme Court. This 
is a question depending upon the construction of our 
own Constitution, and belongs to this court. If our 
Constitution denies to the Legislature the power to 
make the contract, and this court so declare, I do 
not understand that the Federal Supreme Court has 
any jurisdiction to review our decision. It is certain 
it would not if the law be declared unconstitutional, 
and the proposed contract without authority, in ad- 
vance, and its execution prevented, whatever it might 
decide in the event the question were to come up 
after the bonds are issued. So that, when it is found 
that legislative acts of the character of this one are 
construed to be contracts, by which the State is sub- 
jected to the jurisdiction of the Federal court, and by 
which its sovereign power, necessary for its own ex- 
istence and well-being, is surrendered, the State court 
is well justified in declaring that no power exists in 
the Legislature to make such a contract. The State 
must reserve to itself and to each succeeding Legisla- 
ture the sovereign power to protect itself and attend 
to its own looal affairs. Its Legislature can surren- 
der no power not already vested in the Federal Gov- 
ernment. 

Again, assuming that the debt will always be re- 



248 NASHVILLE: 



Lynn v. Polk. 



garded as a just debt, and that no calamity will ever 
occur rendering the people for the time unable to 
meet the interest; that each successive Legislature will 
be w"lling in good faith, to discharge the duty of 
levying the necessary taxes; still it might, in their 
opinion, be necessary for the public good to change 
the manner of payment and repeal the coupon sec- 
tion, — collect the taxes in money and pay the coupons 
at the treasury. This might become necessary to pre- 
vent the various tax collectors in the State — many of 
whom are unsl^illed in business — from receiving coun- 
terfeit coupons. The delay in the collection of taxes, 
even when an ample amount is levied, may, on ac- 
count of the prior claim of the coupon holders, be 
found to operate unjustly to the other creditors of the 
State, and create embarrassments for want of funds to 
me**t the current expenses. The Legislature might 
desire to obviate this by levying a separate tax, pay- 
able in money, to meet the current expenses, leaving 
an ample amount, payable as before in coupons, to 
take up all that remain outstanding. Neither of these 
changes supposes any purpose to repudiate the debt. 
They would be perfectly fair and just, and not in- 
consist with perfect good faith. Yet, if the contract 
be valid, neither of these changes could be made. 
Such changes in the law might be necessary for the 
public good, and yet the Legislature of a sovereign 
State be without the power to pass them. 

We cannot determine, nor was it in the power of 
the last General Assembly to determine, that these 
changes would never be necessary or important. It 



DECEMBER TERM, 1881. 249 

Lynn v. Polk. 

is a power constituting an essential element of sove- 
reignty necessary for the purposes of government, and 
cannot be surrendered, but must remain with the peo- 
ple and their representatives for the time being. The 
extent of the power is not important. If one essen- 
tial element of sovereignty may be surrendered, why 
may not all? Where is the limit? 

It is argued, however, that for a consideration a 
Legislature may relinquish part of the sovereign pow^er, 
though not all. I know that this doctrine is estab- 
lished by numerous decisions of the Supreme Court of 
the United States, with reference to provisions in char- 
ters of incorporations, by which, for a consideration, 
the right to levy taxes in the future has been held 
to be released. We are bound bv these decisions in 
similar cases, but we are- not bound to apply the same 
doctrine elsewhere. The soundness of the doctrine has 
always been denied by some of the ablest Judges of 
the Supreme Court,* and has been met with solemn 
protests by some of the ablest State couits; and Mr. 
Justice Miller has shown, in one of his dissenting 
t>pinions, that if the power be conceded to exist, no 
limit can be fixed to its exercise. 

These decisions must be left to stand upon their 
own peculiar grounds, if indeed they stand upon, any 
sound principle. I have carefully examined the case 
of Antoni v. Wright (22 Gratt.,) decided by the Supreme 
Court of Virginia, and given to it the respectful 
consideration due to the decision of the courts of a 
sister State. But I cannot concur in the reasoning 
or the conclusion. I have already examined the grounds 



250 NASHVILLE : 



Lynn v. Polk. 



upon which it mainly rests. The case of liartman v* 
Gireenhow, 12 Otto, did not present the question. The 
decision in Antoni v. Wrighiy afterwards re-affirmed by 
the same court, had bet-n acquiesced by the State offi- 
cers of Virginia. The coupons in the latter case were 
not refused. The only effi)rt was to deduct from them 
a tax upon the bond. While the reasoning of the 
Virginia court is recited with apparent approval, yet 
it is manifest that decision was regarded as settling 
the question, leaving only the question as to the pror 
posed tax to be decided in the latter case. The case 
of Furman v. Nichol, 8 Wallace, 44, decides that the- 
12th section of the charter of the Bank of Tennessee, 
making its notes receivable for taxes, was a contract 
attaching to the notes that could not be impaired by 
subsequent legislation. The question, of course, has 
some analogy to the present, but is not identical. 

* 

The notes were intended to, and did for a time at 
least, circulate as money. At all events, the question 
as to the power of the Legislature to bind the State 
by a contract like the present, was not considered or 
decided. The same may be said of Woodruff v. Trap- 
nail, 10 Howard. 

* The Supreme Court of the United States has not, 
in general, been disposed to question the power of the 
State. Legislatures to make such contracts. I presume, 
as I have said, the construction of the State constitu-^ 
tion as to the power would be a question for the State 
courts. Though in enquiring whether the contract of a 
State has been impaired, the Uuited States courts do 
not yield to the construction given by the State courts, 



DECEMBER TERM, 1881. 261 

Lynn v. Polk. 

to the statutes out of which the contract arises : Jef- 
fergon Bank v. Shdiyy 1 Blach., 436; Wright v. NayUy 
11 Otto, 794. 

We ought to entertain no feeling of antagonism 
towards the Federal Supreme Court. ^ We should adopt 
its decisions, where they are controlling, without hesi- 
tation. We should not regard its decisions as those 
of a foreign jurisdiction. It is not to be denied that 
the extension of the jurisdiction of these courts over 
the States is, from a political stand- point, regarded 
with jealousy in some quarters as indicating a tendency 
to encroach upon the rights of the States and strengthen 
the General Government. In this contest it is not 
the province of this court to enter with anything of 

a partizan spirit. Upon this character of questions, 

• 

however, Mr. Justice Miller, in a vigorous dissenting 
opinion, in which Justice Field and the Chief Justice 
concurred, in the case of Washington University v. Roxise^ 
8 Wallace, 442, uses this language: "But we must 
be permitted to say, that in deciding the * * va- 
lidity of the contract, this court has been at times 
quick to discover a contract that it might be protected, 
and slow to perceive what are claimed to be contracts 
are not so by reason of want of authority in those 
who profess to bind others.'* This, he adds, has been 
especially apparent in regard to contracts made by 
Legislatures of States. When it is seen that the re- 
sult in cases of this character is, by contract to sur- 
render to the Federal court iuriscliction over the State 
itself in its local affairs, it cannot be wondered if, in 
view of the above statement, State courts shall here- 



^52 NASHVILLE : 



Lynn v. Polk. 



after be a little slow to see the power to make such 
contracts. I trust that at this day I have so special 
^^ mania^^ upon the subject of ^' State sovereignty," but 
I cannot decline to assert so much of the power of 
sovereignty as are yet conceded to the States. 

It is said, however, that the bill attacks the act upon 
the ground that the Legislature cannot pass an irre- 
pealable law, and hence this law is repealable; and at 
the same time assumes that the act is unconstitutional 
because it it is not repealable. This argument is 
earnestly pressed, and it is insisted that the law is 
either repealable or it is not repealable; if it is re- 
pealable no relief is now needed, and it will be for the 
Legislature to repeal it at pleasure; if it is not re- 
pealable, the complainants arc entitled to no relief by 
their own" showing. This, though ingenious, savors of 
^'special pleading." If the section in question was 
only a law, it would of course be repealable, but it 
involves also elements of a contract, and if the power 
exists to bind the State to these stipulations, and th« 
terms be accepted, then the contract could not be im- 
paired. As to neither of these propositions can there 
be any doubt. Nor can there be any doubt, under 
the decision of the Federal Supreme Court, that this 
is a contract. No diflBculty can exist as to its con- 
struction and meaning. It was intended to prevent 
the repeal of the law. The question is not whether 
it is or is not a contract, or as to the meaning of 
the contract ; but the question is, whether the Legis- 
lature had the power to bind the State to these stip- 
ulations. It is not an accurate statement of the po< 



DECEMBER TERM, 1881. 25a 



Lvnn V, Polk. 



sition of the complainants to say that the act isi« un- 
constitutional because it is not repealable, but it is^ 
because it professes to authorize a contract on behalf 
of the State which the Legislature had not the power 
to make — that is, a contract relinquishing part of the 
sovereign power of the State. Of course, if the law 
be unconstitutional, it may be so declared, even after 
the bonds are issued ; but it does not follow that it 
may not be so declared in advance. It is assuming 
that the question cannot arise until there is an attempt 
to repeal the law — that until then there is no real case. 
But this overlooks the fact that this is not only a 
law, but professes to be a contract. If the court has 
jurisdiction and the proper parties are before it, na 
doubt can exist as to the right to declare in advance 
the want of power* to make the contract, and prevent 
its consummation. 

If such jurisdiction exists, it would in every view 
be better to exercise it now, rather than allow the 
bonds to be issued and afterwards allow the coupon 
section to be repealed and the contract changed. Of 
course we cannot know that the attempt will ever be 
made to repeal it ; but the bonds in the form pro- 
posed would contain an unwarranted assumption upon 
their &ce and be calculated to deceive and mislead 
innocent purchasers, and create litigation. The Su- 
preme Court of the United States enjoined the board 
of liquidation of Louisiana from issuing bonds of the 
State to certain persons, upon the ground that an act 
of the Legislature authorizing it, indirectly impaired 
the rights of complainants under a former act : 2 Otto, 



254 NASHVILLE : 



Lvnn V. Polk. 



531^ In Davis v. Ghray, the Governor of Texas wna 
enjoined from issuing grants to a large body of land, 
upon the ground that it would interfere with other 
titles : 16 Wallace. And there are various other cases 
holding that it is proper to grant the relief in ad- 
vance : Mott V. Pennsylvania, 30 Penn. St. Rep., 1 ; 
Bradley v. Commissioners^ 2 Hum., 428 ; Winston v. 
T. & P. Bailroad, 1 Baxt., 60. 

If this law, in terms, authorizes the defendants to 
enter into contracts in the name of the State, contain- 
ing stipulations to which the State undiT the consti- 
tution cannot be bound, then there ought to be no 
reluctance in so declaring, or any *' straining of the 
timber" of the law to avoid the result. 

It may no doubt be thought that there are strong 
reasons why the court ought, if possible, to sustain the 
settlement. The State, it may be said, has large re 
sources; the debt is not beyond our means; it has 
been a disturbing element in the State; the reputation 
of our people for honor and integrity is at stake, and 
the court ought, from these con.sideration, to resolve 
all doubts in favor of the law, brush aside all tech- 
nicalities and abstractions, and sustain the action of the 
TiCgislature, if possible, because it is a favorable settle- 
ment, and it is of great importance to the State that 
it should be sustained. 

To defeat this settlement of the public debt is, I 
know, assuming a great responsibility. 1 certainly 
could not undertake to join in doing so upon a mere 
technicality or abstraction. I cannot, of course, know 
that this law would ever injuriously affect the State; 



DECEMBER TERM, 1881. 255 

Lynn r. Polk. 

it might not; the burdens imposed might be submit- 
ted to and borne without injury or complaint. But 
if it involves a vital principle of constitutional law, 
essential in its nature to the preservation of the State 
and the rights of the people, then this principle cannot 
be surrendered, upon the suggestion that in this in- 
stance it would do harm, and that it is for a good 
purpose. A radical error once established may do 
incalculable ' injury. I cannot undertake to speculate 
as to the consequences; my duty is to respond to the 
x)uestion presented by the record. The political con*- 
siderations are not for the court. 

It simply resolves itself at last into the question, 
whether the sovereign power of the people of this State 
to deal with their public debt, to raise revenue by 
taxation and appropriate it, and enact laws in regard 
to the manner of such collections, shall remain with 
them and their representatives as they shall from time to 
time assemble, or shall that power be held to have been 
surrendered by the contract of one General Assembly 
for ninety- nine years, and the jurisdiction thereby vested 
in the Federal court to coerce the State into the per- 
formance of the contract. It must be remembered 
that if the contract be valid, the people of the State 
cannot change it even by constitutional amendment — 
they cannot even in this mode impair the obligation. 

The last General Assembly, actuated no doubt by 
a patriotic desire to redeem the hont'r of the State 
and do justice to its creditors, undertook to satisfy 
their demands by putting 'the obligation in such form 
that no future legislatvre could question the settlement 



256 NASHVILLE : 



Tjynn v. Polk. 



or change the manner of payment. This feature of 
the law seems to have had lie origin in a want of 
confidence in the integrity of the people and their fu- 
ture representatives. In this I think the Legislature 
exceeded its power. The responsibility of making pro- 
vision for the debt, the honor and good name of the 
State, must be left with the people. If they in an 
evil hour should choose to violate their faith and bring 
reproach and dishonor upon themselves by repudiating 
debts that in justice they ought to pay, it will indeed 
be a sad calamity ; but I am not to presume that 
such an event can ever occur. The people of this 
State cannot be guilty of so great a folly and so great 
a crime; but if they choose to do so, I do not know 
how they shall be prevented. One Legislature has no 
power to act upon such a presumption, and bind the 
people by a contract which surrenders their sovereigu 
powers. 

It remains, then, to be seen whether the court haa 
jurisdiction, and the necessary parties to render a de- 
cree. It is argued with great earnestness and force, 
that the court cannot take jurisdiction of this case,, * 
because it is in effect a suit against the State, or against 
" oflBcers of the State acting by authority of the State,, 
with a view to reach the State.^' 

The constitution allows suits against the State in 
such manner as the Legislature may provide J but as 
there is now no law providing for such suitSj it is 
conceded that they cannot be maintained. On the 
contrary, the act of 28th February, 1873, declares that 
no court in this State shall have jurisdiction "to en^ 



DECEMBER TERM, 1881. 257 



I Lvnn V. Polk. 

I 



tertain any suit against the State or apilnst any officer 
of the State acting bv authority of the State, with a 
view to reach the State, its treasury, funds or property.'^ 
We have decided quite a number of case:? since this 
act was passed, awarding the process of mandamus 
against the comptroller, to compel him to issue war- 
rants to parties having claims against the State allowed 
by law: Baxter v. Burch, 12 Heis., 601; FiiblisJnnff 
Co, V. Burchy lb,, 607 ; Ufd v. Gaines, 4 Lea, 352, 
besides quite a number of unreported cases. The effect 
of the act of 1873 seems not to have been considered 
in those ca?es ; but it would certainly not be con- 
strued to deprive the court of jurisdiction to compel 
a ministerial officer to perform a plain ministerial duty ; 
and when the demand of the relator is allowed by 
law, it is the plain ministerial duty of the' comptroller 
to issue his warrant, even though in determining this 
question the court may have to declare legislative acts 
unconstitutional. Otherwise, the decision of the comp- 
troller would be final, and the party having a demand 
allowed by law without remedy. Such proceedings, 
so far from being fc^uits against the State, are in fact 
such in the name of the State to compel its officers 

to perform their duty. 

* 

There are cases, however, where the ministerial offi- 
cer is vested with discretion in the discharije of his 
duties — a discretion -which the courts cannot control. 
They may compel him to perform his duty, but may 
not determine how his discretion shall be exercised. 
The principle upon which mandamus is awarded against 

ministerial officers in such cases, is not tiiat the State 
17— VOL. 8. 



258 NASHVILLE : 



Lynn v. Polk. 



is coerced, or its officers corapelled to perform acts 
against the will of the State, but precisely the reverse ; 
they are compelled to perform the will of the State 
as expressed by law — in general the only manner in 
which it can be expressed. It is claimed that the 
defendants in this ease are officers of the State acting 
by authority of the State, and hence cannot be inter- 
fered with in the discharge of the duty imposed by 
the act of 1881, without directly- violating the act of 
1873, above set out. The only evidence that they 
are in this matter acting by authority of the State, 
is the act of 1881, under consideration; if it be out 
of the way, then they have no authority. In . that 
view, so far from their proposed acts being by au- 
thority of the State, they would not only be acting 
without authority, but in direct violation of the will 
of the State, The State cannot be supposed to be 
standing behind its officer urging the execution of an 
unconstitutional law, especially when where there is 
nothing to show this but the unconstitutional law itself. 
Otherwise, a void law for this purpose would be as 
effectual as a valid law. But it is said the court 
cannot reach the question of the validity of the law — 
that the jurisdiction is defeated in limine. 

It is true the court cannot take jurisdiction of the 
State for any purpose, but it has undoubted jurisdic- 
tion of the defendants. The objection to the exercise 
of the particular jurisdiction against them is, that they 
are officers of the State acting by authority of the 
State. To determine this the court must look to their 
authority — it cannot accept their mere assumption. If 



DECEMBER TERM, 1881. 259 

Lvnn r. Polk. 

the authority be wanting, or the law which they claim 
gives them authority be void, then they are not acting 
by authority of the State. It is true they would 
have color of authority — a law being prima Jade valid — 
but if the court can look far enough to see this much, 
they can look farther and see that it is in fact void. 
This doctrine is firmly established as respects the 
jurisdiction exercised, by the Supreme Court of the 
United States, in enforcing the clause of the Federal 
constitution against State laws impairing the obligation 
of contracts, even where the contract to be upheld is 
the contract of the State. In such cases, although 
the State officers may be acting under the authority 
of a law of the State prima facie valid, and although 
the 11th amendment to the Federal constitution pro- 
hibits the suits against the State, yet the Federal 
<;ourts take jurisdiction of the officer; and if the law 
of the State under which he is acting be found to 
impair the contract embraced in any previous act, the 

former is declared void, and the officer is compelled 

I 
to execute the law as the court may declare it. The 

oourts say that, such suits are not suits against the 
State, although the State be the real party in interest: 
Osborne v. Bank U, S., 9 Wheaton, 738; State Bank 
of Ohio v. Knoop, 16 Howard, 369; Dodge v. Woolsey, 
18 Howard, 331; Bank v. DeboH, Ibid, 380; Jefferson 
Bank v. SkeUy, I Black., 436; Davis v. Gray, 16 ^Va^ 
lace, 220; Murdock v. Governor Woodson, 22 Wallace,' 
351 ; Board of Liquidation v. McComb, 2 Otto, 351. 
In the latter case the board of commissioners of Lou- 
isiana, of which the Governor was a member, was 



260 NASHVILLE : 



Lynn v. Polk. 



restrained by injunction from issuing bonds of the State 
which were expressly authorized by an act of the Legisla* 
ture of Louisiana. They pleaded the authority of the 
act. The court said the State could not be sued, but 
that an unconstitutional law was no authority for the 
non-performance or violation of duty, but would be 
regarded as merely void. So, notwithstanding the act 
authorizing the bonds to issue, it was held to be the 
.plain duty of the board not to igsue the bonds, and 
one about which they had no discretion. So in Davis 
V. Grray, the Governor of Texas was restrained from 
issuing grants for land in the State, although expressly 
authorized by an act of the Legislature prima fade 
valid. It is said, however, that these decisions only 
establish the rule of the United States courts when 
exercising the jurisdiction of that court to enforce the 
constitution and laws of the United States, that is to 
say, the clause prohibiting States from passing laws 
impairing the obligation of contracts; but when they 
exercise concurrent jurisdiction with the State courts, 
dependent upon citizenship, the rule is different. In 
the cases first named the rule must be the same in 
the State as in the Federal ceurts. It is as much 
the duty of the State as the Federal court to uphold 
the constitution of the United States, and declare void 
all laws impairing the obligation of contracts, and for 
this purpose to entertain suits against officers of the 
State. They cannot escape this duty by holding a 
suit against an officer to be a suit against the State. 
A judgment on this ground would be reversed by the 
Federal Supreme Court, and by its mandate the Slate 



DECEMBER TERM, 1881. 261 

Lynn v. Polk. 

m 

court would be required to enter a judgment against 
the ofiScer. 

So that the argument insisted upon would lead us 
to this conclusion : In cases involving the provisions 
of both the State and Federal constitutions against 
laws impairing the obligation of contracts, the rule 
would be that a suit against an officer is not a suit 
against the State. If it involve any other provision 
of tha State constitution, the rule would be exactly 
the reverse. It would seem that upon principle, the 
Tule ought to be uniform. We have a number of 
cases in which officers and agents of the State have 
been restrained by injunction from carrying out laws 
which result in violating the constitution ; as, for in- 
stance, the establishment of new counties. The leading 
case on this subject is Bradley v. Commissioners j 2 Hum., 
432, which has been repeatedly followed; see, also, 
Moit V. Pennsylvania^ 30 Penn. St., 1 ; also, Galloway 
V. Chatham^ 63 North Carolina; also, Winston v. T, & 
P. Railroad, 1 Baxter. 

The cases, however, of Bradley v. Commissioners y and 
others of a similar character, were before the act of 
1873, and the mandamus cases before referred to, did 
not consider its effect. 

This question was considered in the case of the 
State V. Sneedy 9 Baxt., 472, in which it was held that 
the act of 1873 deprived the court of jurisdiction by 
mandamus to compel the tax collector to receive the 
notes of the Bank of Tennessee issued after May, 1861, 
in accordance with the 12th section of the charter. 
It will be seen, however, that the real ground upon 



262 NASHVILLE : 



Lvnn r. Polk. 



which this decision rests is, that by another act of 
the same seasion, ch. 44, acts of 1873, a new remedy 
was given, that is to say^ to pay the taxes in money 
under protest, and sue . the collector to recover back 
the sum paid; and in this view, chapter 13 of the 
acts of 1873 did not impair the contract contained in 
the 12th section -of the bank charter, and it was upon 
this ground the validity of the act was recognized by 
the Federal Supreme Court. The act of 1873, ch. 13, 
does profess to take away all jurisdiction against offi- 
cers of the State in the cases named. The act was 
no doubt intended to protect the treasury and taxes 
of the State and its property, even against claims that 
might be valid. It was principally intended no doubt 
to protect the State from being compelled to litigate 
with the taxpayers as to their right to pay their taxes 
in the new issue of the Bank of Tennessee, and have 
the collection of taxes suspended by these suits. The 
necessities of government require summary remedies for 
the collection of revenue, and to secure this was the 
principal object of the act; and it may be that in 
some cases this court has extended the act to an un- 
warranted length in protecting State officers. I think 
it could not have been intended to deprive the citizens 
of all remedies in any case to protect themselves by 
injunction against the execution of unconstitutional laws 
by officers of the State. The object is not to reach 
the treasury, funds or property of the State, or to reach 
the State, or interfere with its laws or the adminis- 
tration of its public affairs. It is precisely the reverse. 
It is to protect the treasury, funds and property of 



DECEMBER TERM, 1881. 263 



Lvnn V. Polk. 



the State, and to protect the State from the conse- 
quences of unauthorized acts about to be performed in 
her name. The only ground, I repeat, upon whibh 
it can be assumed that it is the will of the State that 
the bonds be issued, is the unconstitutional void law. 

There are cases where executiv'e officers are vested 
with sole discretion to determine the validity of the 
laws under which they act, and where their action 
cannot be controlled by the court or its validity ques- 
tioned afterwards. Such was the case of Jonesboro 
Tutmpike Co. v. Brown, 9 Baxter. 

There are other cashes where, although the court 
will not control their action, the same question may 
come before the court and be decided differently. Such 
was the case of Williams v. Register ^ Cooke, 214. The 
executive department of the government cannot be de- 
layed and embarrassed by the execution of the laws 
necessary for the administration of its affairs, until the 
constitutionality of the laws be determined by the 
courts: Mississippi v. Johnson, 4 Wallace, 475. 

The question of the constitutionality of this law 
IS one ultimately fcr the courts. It cannot be held 
that the funding board were vested with exclusive ju- 
risdiction to determine the validity of the law. Their 
decision could not, in the nature of things, be final. 
If they were to determine the law unconstitutional 
and refuse to issue the bonds, the court would no 
doubt have jurisdiction by mandamus, if it deemed the 
law valid, to compel them to act. On the other 
hand, the court deeming the Jaw unconstitutional, had 
the jurisdiction to restrain their action by injunction, 



264 NASHVILLE : 



Lvnn V, Polk. 



as in such eases mandamus and injunction are correla- 
tive remedies: .McComb v. Board of Liquidation^ 2 O^to. 
So that in any event it is a question for the courts. 
It thereiore only becomes a question whether it is to 
be decided now or after the bonds are issued. If 
the court has jurisdiction and the proper parties before 
it, there is every reason why the injury should be 
prevented, rather than attempt to remedy the wrong 
afterwards : Molt v. Pennsylvania ^^ 30 Penn. St., 1 ; 
Davis V. Clray, 16 Wall. ; McGornb v. Board of Liquida- 
tion, 2 Otto. 

It is said the State is an indispensable party. If 
the State can be made a party in such case.*- it should 
be done; that it cannot, is a sufficient reason for not 
doing so: Davis v. Gray, 16 Wall. The Attorney 
General for the State, or any counsel employed by the 
Governor, would have been heard had they so desired. 
The funding board are the onlv persons who could 
have been made defendants^. The creditors have as 
yet taken no benefit under the act, and are besides 
unknown and too numerous to be made defendants: 
Davis V. Oray, 16 Wall. 

The complainants only have the interest of citizens 
and taxpayers of the State. This would clearly not 
give them the right to prevent the execution of an 
uncojistitutional law that might incidentally affect them. 
But i-uch an interest has been held sufficient to entitle 
them to prevent the establishment of a new county : 
Bradley v. CommisstonerSy 2 Hum. The issuance of 
illegal bonds by a county : Winston v. T. d' P. Railroad 
Co.: 1 Baxter. Also, to prevent the execution of 



DECEMBER TERM, 1881. 265 

Lynn r. Polk. 

an unconstitutional law, by which the StMe's right of 
taxation was to be relinquished : Mott *y. Pennsylvania^ 
30 Penn., 1. Also, to prevent the issuance of unau- 
thorized bonds: Galloway v. Chatham, 63 N. Carolina. 

To suspend the execution of this law will not in- 
terfere with or embarrass the general administration of 
the public affairs of the State, either with respect to 
its internal government, or in the consummation of 
any public enterprise upon which the prosperity of the 
State may be supposed to depend. 

The creditors already hold the bonds of the State. 
To suspend the execution of the act will only prevent 
the exchange of these bonds for others which, in my 
opinion, would contain stipulations by which the State 
cannot be bound ; and if in this I am correct, it is 
to the interest of the creditors to have it so now 
declared. 

These are the conclusions at which I have arrived, 
after most earnest consideration. I announce them 
with no feeling of undue confidence in my own opin- 
ion. And I may say, without affectation, that it is 
to me a matter of deep regret that tliese conclusions 
are not sustained by a unanimous bench. I would 
certainly feel far better satisfied could I have also the 
opinion of the Chief Justice and the venerable Asso- 
ciate Justice who sits under a special commission in 
this, case, to lean upon, knowing full well the weight 
their superior learning, ability and experience and high 
character, will give their opinions on questions of this 
character. I must, however, stand upon my own con- 
victions; and while these convictions are announced, I 



266 NASHVILLE : 



Lynn v. Polk. 



trust in a spfitit of moderation, and with the highest 
respect for those who differ with me, yet they are as 
strong and as free from doubt as any question of this 
character can be to the mind of any one who realizes 
how much may always be said upon both sides of 
of any question. 

I am of opinion that the decree of the chancellor 
dismissing the bill is erroneous. ' 



EwiNG, Special J., said : 

It is with no little regret that I find myself com- 
pelled to differ in this case from a majority of the 
regular members of the court. But as I should feel 
myself recreant to my duty as a judge were I to 
concur for the sake of conformity in opinions and 
conclusions, contrary to my most deliberate convictions, 
I proceed, without excuse, to give my opinion in this 
case. 

The bill in this case was filed in 1881, in the 
chancery court at Nashville, by certain alleged citizens 
and tax- payers of the State of Tennessee, to enjoin 
the carrying out and enforcement of an act of the 
General Assembly of said State, passed at its regular 
session of 1881, entitled "an act to compromise and 
settle the » bonded indebtedness of the State of Tennes- 
see." This act provided for funding all of the legally 
issued bonds of the State, except the bonds issued for 
the permanent school fund, and except the bonds held 



DECEMBER TERM, 1881. 267 

Lvnn V. Polk. 

by the University of Tennessee, and by educational 
and charitable institutions, &c., and all outstanding 
coupons thereon up to and including those falling due 
.July 1, 1881 ; these bonds and coupons are to be 
funded into bonds of the State bearing interest at 
three per cent., with coupons receivable for all taxes 
and dues to the State, except taxes for the support 
of the common schools and for payment of the inter- 
est on the common school fund, the bonds to be 
styled the "compromise bonds" of the State of Ten- 
nessee, and to have ninety-nine years to run, though 
redeemable at the pleasure of the State after five years; 
for the punctual payment of the principal and interest 
of said bonds the faith, credit and honor of the State 
are "solemnly pledged." The Secretary of State, the 
Comptroller and the Treasurer are constituted a board, 
to be designated a "funding board," for the carrying 
out of this act. The funding board may sit when 
and where thev mav deem best to enable the holders 
of the outstanding bonds to fund the same. It is 
their duty to examine and audit such legally issued 
outstanding bonds of the State as may be presented 
to them for funding, and if found to be genuine, to 
prepare the necessary compromise bonds, which, when 
signed by the Governor and the great seal of the 
State affixed thereto, and the original bonds registered 
in the Comptroller's office, and a full memorandum of 
the fc^ame made by the Comptroller and signed by the 
party to receive the compromise bonds, are to be de- 
livered to such party upon his receipting therefor. 
Certain com{)ensation also is allowed for their services 



268 NASHVILLE : 



Lvnn V. Polk. 



V to the members of the funding board. These are all 
of the provisions of the act necessary to be stated. 

By the general appropriation bill of the same ses- 
sion of the General Assembly, $1,125,000, or so much 
thereof as might be necessary, was appropriated to 
meet the coupons upon the compromise bonds as they 
might fall due for the next succeeding two years. 
The revenue bill of the same session* fixed the State 
tax for the year 1881 and thereafter at fortv cents 
on the one hundred dollars, of which thirty cents was 
to be for State and ten cents for school purposes. 
By existing law the county courts were authorized to 
levy an amount annually by taxation for general pur- 
poses, not to exceed the State tax exclusive of the 
tax for public roads and schools. Under the revenue 
bill aforesaid, a State tax of fortv cents on the hun- 
dred dollars has been collected, or is in process of 
collection, thirty cents on the dollar of which may, 
by the terms of the funding bill, be applied to the 
coupons of the compromise bonds. All of these facts 
appear by statements in the bill. The bill was filed 
before the funding board entered upon the discharge 
of their duties. 

The grounds for injunction stated in the bill are: 
That the *^ funding act'^ was procured to be passed 
by bribery and corruption of certain members of the 
General Assembly; that the tax-coupon feature fore- 
stalls the revenue and diverts it from current exigen- 
cies, narrowing the scope of subsequent legislation by 
an enactment in the form of a contract binding the 
revenue, and the political power of the State over the 



DECEMBER TERM, 1881. 26» 

Lynn v, Polk. 

same^ and directing this revenue exclusively and prefer- 
entially to the discharge of such contract, thereby de- 
nying to the State "that benignant supervision that 
will both allow and prompt her to temper and adapt 
her rule to the circumstances and vicissitudes which 
the coming years may bring"; that this same feature 
violates sec. 24, art. 2, of the Constitution — that "no 
money shall be drawn from the treasury but in con- 
sequence of appropriations made by law"; that the 
same feature violates sec. 12, art. 11, of the Consti- 
tution, which says that the interest on the common 
school fund "shall be inviolably appropriated to the 
support and encouragement of common schools"; that 
it breaks in upon the previous revenue system adjust- 
ed to what has heretofore been receivable for revenue, 
thereby amending that system, yet without referring 
thereto, and thereby violating sec. 17, art. 2, of the 
Constitution; that the act amends the revenue act of 
1873, which prescribes what shall be receivable for 
taxes, by adding the compromise coupons to the list 
of tax-receivables, and yet does not recite in its cap- 
tion or otherwise the title or substance of the law 
amended ; that the act violates sec. 2, art. 2, of the 
Constitution, forbidding any person belonging to one 
department of the government from exercising any 
power belonging to either of the other departments — 
in this, the "funding board" being given judicial pow- 
ers; and that the Legislature (looking to the possible 
consumption of the revenue actually provided, by the 
coupons) did not make adequate provision for the or- 
dinary expenses of the government. The persons des- 



270 NASHVILLE : 



Lynn v, Polk. 



ignated in the act by thei^r offioial titles as a funding 
board, were made defendants to the bill in their own 
names — M. T. Polk, J. N. Nolan and D. A. Nunn — 
*^ hereinafter styled the * funding board.' ^^ The injunc- 
tion prayed for was granted, and thereupon the de- 
fendants, having been served with process and enjoined 
according to the prayer of the bill, appeared in the 
chancery court at Nashville and moved the court to 
dissolve the injunction for want of equity on the face 
of the bill. That court dissolved the injunction, and, 
in addition of its own motion, also dismissed complainants' 
bill. From the decree thus made, complainants ap- 
pealed to this court, and the cause is now here * upon 
this appeal. 

The case has been argued with admirable ability 
and ingenuity by the counsel on both sides. It was 
a pleasure, rather than a labor, to hear them. It 
comes now to be decided. 

Is this in substance, though not in form, a suit 
against the State, and therefore upon general principle, 
as well as under the act of the 28th of February, 
1873, inadmissible? The second section of that act 
is as follows : " No court in the State of Tennessee 
has, nor fc»hall hereafter have, any power, jurisdiction 
or authority to entertain any suit against the State, 
or against any officer of the State, acting by authority 
of the Slate, with a view to reach the State — its treas- 
ury, funds or property; and all such suits now pending, 
or hereafter brought, shall be dismissed, as to the State 
or such officers, *on motion, plea or demurrer of the law 
officer of the State or counsel employed for the State." 



DECEMBER TERM, 1881. 271 

Lvnn v. Polk. 

W 

This case having bcMi dismissed by the chancellor 
«ua sponte in the court below, presents itself here as 
upon a motion by defendants to dismiss for want of 
equity on the face of the bill. To this it is objected 
that the motion cannot be made, if made under the 
above recited act, by anybody but the Attorney- Gen- 
eral or counsel employed by the State. It scarcely . 
lies in the mouth of the complainants to make this 
objection, as they insist that the State is not sued, 
nor an oflBcer of the State acting by authority of the 
State to reach the State, but persons acting, or about 
to act, under an unconstitutional act of Assembly, and 
as such, mere wrong-doers, or, at most, wrong- doers 
eolore offidL But as the defendants, who are sup- 
posed to make the motion, contend that the State sub- 
stantially, and its officers acting by its authority actu- 
ally are sued, it may be proper to give this question 
consideration. The act of 1873 is perhaps a mandate 
to the Attorney-General, or counsel employed by the 
Stat^, to make such a motion. It is competent, how- 
ever, I apprehend, for any one impleaded in a court 
of chancerv, and against whom a decree and injunc- 
tion are sought, to make such a motion. If the 
<;ourt should be of opinion that either the State or 
its officer acting by its authority is the real party, • 
then the counsel makinj^ the motion will be taken, in 
the absence of any questioning of tiieir authority when 
the motion is made, to be the counsel of the State; 
and if the court should be of a different opinion, still 
the motion might be made, whatever its result might 
he. So that I see no objection to the motion in 



272 NASHVILLE: 



Lvnn V. Polk. 



either aspect, or any aspect looking to the general 
sovereignty of the State, the act of 1873, or, on the 
other side, to the unconstitutionality of the act. 

It is further said, however, by complainants that 
on such a motion all of the facts stated in the bill 
to constitute equity are admitted, and that the ques- 
tion of jurisdiction cannot be considered; that this 
must come up later upon specification in a demurrer. 
The more correct statement in regard to admission of 
facts upon such a motion would perhaps be this: The 
facts stated, if true, do not make a case for the in- 
terposition of a court of -equity, and cannot be noticed 
by it. Substantially, however, there is no diiference 
between these two. The cases cited to show that the 
court on such a motion cannot look at the question 
of jurisdiction, are Merriman v. Noi^man^ 9 Heis., 268; 
Mays V. Biggn and Wifcy 3 Head, 37 ; and Earles v. 
EarleSy id., 366. I have carefully looked into these 
cases, and find no warrant in them for the assump- 
tion. If the factfi stated in the bill be all taken to 
be well pleaded, as it is insisted they are, the whole 
of them taken together may not make a case that can 
be considered by a court of chancery. Jurisdiction is 
not a fact admitted on the motion. There may be 
. natural equity in the facts as stated, but it may be 
such equity as the courts of chancery, neither from 
inherent power nor from power communicated by the 
Legislature, can consider. It may be not an equity 
of the court. The case of Anderson v. MaUenixy 5 
Lea, 289, holds that on such a motion as the pres- 
ent, the court will not dismiss a bill for a defective 



DECEMBER TERM, 1881. 273 

Lynn v. Polk. 

statement of a real equity, of which real equity the 
court would have jurisdiction if accurately and fully 
set out. Now all the equity that complainants have 
is fully and completely set out, and however real, as 
natural equity may not come within the remedial pow- 
ers of a court of chancery. The fraud charged may 
be no fraud in legal view, and may therefore need 
no answer at the hands of the present defendants un- 
der the present bill. When the time comes in the 
order of pleading for a demurrer, the want of juris- 
diction must be specially set out, or it will be waived; 
but before this time comes, the court may look and 
see that it has at no time anything to do with the 
bill, and dismiss it. • The motion to dismiss^ can then 
be entertained. 

Upon the question of jurisdiction, then (disassociated 
from the special equities set up in the bill), as the 
most advanced question, I proceed with some discus- 
sion to announce my opinion. As it is not denied 
by complainants that if this be a suit against the 
State, or its officers acting under its authority, to- 
reach the State, its treasury, funds or property, in 
form or substance it cannot be maintained, that ques- 
tion need not be discussed. But there is a difference 
between the parties here as to the proper construr^tion 
and meaning of the act of 1873. It will be neces- 
sary to settle that before proceeding further. Does 
the act mean to protect the State and its officers act- 
ing by its authority only when the State is re:viiied 
through its treasury, funds or property, or generally, 

when it is in any manner reached, if indeed it can 
18— VOL. 8. 



274 NASHVILLE : 



Lynn v. Polk. 



be reached in any manner except through its treasury, 
funds and property? To give full effect to the sec- 
ond section of the act of 1873, it must be held, I 
think, to mean that the State is not allowed to be 
reached in any way through its officer so far as that 
its interests of any kind can be affected. I do not 
think the words "its treasury, funds or property," are 
to be used as the definition of what is meant by 
"reach the State," but are superadded for abundant 
caution, as those are the most probable and usual ob- 
jects of attack when the State is attempted to be 
reached. Are there not other modes in which the 
State may b6 reached besides these? Suppose the ne- 
gotiation of a large loan for the benefit of the /State 
in a case of urgent necessity to be proposed in an 
act of Assembly, and the matter placed by the act in 
the hands of the Comptroller, and certain citizens (tax- 
payers) should undertake to enjoin the Comptroller 
from negotiating the loan, on the ground, not that 
the act was unconstitutional, but that it was unwise 
or impolitic, — would not this be a suit to reach the 
State through its officer acting by its authority, and 
yet not to reach its treasury, funds or property? 
Suppose an act to establish a general school system, 
which should be sought to be enjoined through an 
injunction upon the Superintendent of Public Instruc- 
tion. This would certainly be an attempt to reach 
the State through its officer, and yet not through 
either its treasury, funds or properly. Such bills are 
certainly forbidden to be filed. Aside from the ques- 
tion of constitutionality, such is the scope of the pres- 



DECEMBER TERM, 1881. 275 

Lynn v. Polk. 

-ent bill. But it is said that it is in the ver}' fact 
of its unconstitutionality is founded the right to have 
it enjoined ; that the act^ though in form a law, is 
a nullity, and being such, the State officers, if the 
funding board be its officers, are not acting by au- 
thority of the State, and the State will not be reached. 
It is immaterial, I think, to inquire whether the "fund- 
ing board*' is constituted of officers of the State, such 
as are contemplated by the act of 1873, or are to be 
regarded as agents of the State. Whether they are 
the one or the other, they are equally beyond reach 
under this bill. If they are agents, then to sue them 
is in effect to sue the State itself, as the State would 
be thus affected in its interests. The act is one 
■clothed with all of the forms of the law, and is one 
of vast importance to the State for good or for evil, 
and is prima facie a law. Can the constitutionality 
of an act be questioned by a proceeding making the 
State a party in such way that neither its sovereignty 
nor the act of 1873 would offer an obstacle? — a party 
in such a way as that she could be said not to be 
-stied because the allegation of unconstitutionality of the 
act would make it not her act, but an act passed 
without her authority? It might be said that the 
court was merely asked by the allegations of the bill 
to declare the act unconstitutional, as not the act of 
the State, and that these allegations clearly made it 
out so. Would not such a bill at once bring the 
Attorney- General to his feet to throttle it? Such a 
bill would not for a moment be entertained by the 
court. But by, the act of 1873, the officer is clothed 



276 NASHVILLE : 



Lynn v. Polk. 



with the same inviolability as the State itself. But 
you say that he is not acting by authority because 
the act is void and communicates no authority, and 
that you are not suing the officer clothed with au- 
thority, though he seems to be so by the act, but 
merely asking the court to declare that void which 
purports to clothe him with authority but does not. 
Is the person thus sued, being an officer in form at 
least, to stand still as officer and make no defense? 
or, must he not contest the point and defend what 
seems to be his position as officer, and thus consum- 
mate that contestatio litis against which he as well as 
the State is intended to be protected by the act of 
1873? In either of the cases above supposed — that 
of making the State a party, or that of making the 
officer a party — you assert in the one case that you 
are not attacking the sovereign, in the other that you 
are not attacking the officer, though in either case 
you ask injunction against that which it is to be pre- 
sumed the State would defend, and also that the offi- 
cer would defend. You would make with the State 
a contest; you do the same with the officer here, 
calling him, however, not an officer pro hac vice. 
Now, are not the complainants endeavoring to do here 
precisely what they could not do, if they should at- 
tempt to bring those who are jn^ma facie interested 
in this question of constitutionality before the courts. 
The State cannot be made a party; the officer can- 
not be made a party; though the State is deeply in- 
terested in the question of the constitutionality of the 
laws passed by her Legislature, in favor of which 



DECEMBER TERM, 1881. 277 

*- - ■ 

Lynn v. Polk. 

there is every presumption. By her sovereignty does 
she not stand; and by her expressed will in the act 
of 1873 has she not placed herself, where she cannot 
be directly questioned? Can others proceed directly to 
annul what are her laws prima facie in spite of the 
barriers she has thrown around herself^ and in a man- 
ner much easier because of these barriers? She is a 
necessary party, but she cannot be made a party, and 
therefore what seem to be her behests may be flanked 
and held as nullities. This is an attempt to do what 
she has said expressly, in substance, by her act of 
1873 shall not be done. There will be a time when 
this question can be made, — when the holder of the 
coupon presents it to the tax-collector, it is refused, 
and paying the tax, sues the collector. Here the 
question can be made, and the State reached under 
its own laws. Then the controversy becomes a real 
one, the State can intervene if it thinks proper, and 
the proper parties litigate. In the case of Gibbs v. 
Greene, 54 Miss., the court say: "This court has no 
power to examine an act of the Legislature generally, 
and to declare it unconstitutional." "The limit of our 
authority in this respect is to disregard, as in viola- 
tion of the Constitution, any act or part of an act 
which stands in the way of the legal rights of a suitor 
before us." In the case of Black v. Fleece, 2 Lea, 
566, this court held that such an anticipative proceed- 
ing as the present could not be entertained. An ab- 
stract proposition looking to . speculative possibilities, is 
not a proper subject of legal cogaizance. Courts look 
•to rea conflicts of interest, not to shadowy prophecies. 



278 NASHVILLE : 



Lvnn V. Polk. 



A bill quia timet does not lie to protect against re- 
mote contingencies. It is only when the heavens are^ 
black with storoi; that precautionary measures of a 
doubtful nature can be demanded. The present pro- 
ceeding seems to me to be rather one of the phases 
of a political struggle, than an earnest effort to assert 
Idgal rights. Passing this, however, suppose the court 
in the present case should take jurisdiction, and should 
hold that the law is constitutional, — will not these tax- 
payers have reached the State in effect through its 
officer acting by its authority, and had their contest 
with it? Suppose it should hold the act to be un- 
constitutional, and the oflieer be enjoined, or the in- 
dividual (and it is immaterial which), would not the 
State be stopped from doing that which, but for this- 
bill, it would have gone on to do through its Gov- 
ernor, Secretary of State, Comptroller and Treasurer, 
whether with or without the authority of the Consti- 
tution? Now, it is precisely this, among other things, 
that was intended to be prevented by the act of 1873 — 
a contest without the State's license, in its own courts, 
against the State, or its officer, to test the validity of 
its laws. Such a contest, if it is to arise, is rele- 
gated to the citizen tax-collector (of whom there are 
nearly one hundred in the State, who will also prob- 
ably be a tax-payer), whose duty it will be, when- 
coupons are offered for taxes (if he believes this act 
unconstitutional), to refuse them. Relief will then 
come, if due, under the contest which will necessarily 
arise as to the validity of this law. Practically, no 
difficulty will ever arise to bring this matter to an 



DECEMBER TERM, 1881. 27& 

Lynn v. Polk. 

issue. Under the act of March 21, 1873, authorizing. 
Qitizens to pay their taxes under protest, the State 
itself being made in eifect, by its own license, a de- 
fendant, can come forward to have this act declared 
unconstitutional, and that will not be too late for the 
protection of citizens generally against the execution 
of this act. The Governor of the State is entrusted 
with the duty and the power to see that the laws 
are faithfully executed ; and correlatively, it seems to 
me, with the duty of seeing that an unconstitutional 
act is not executed at all. Yet he has not thought 
proper to intervene here ex mero motu through the 
Attorney-General, nor does it appear by any allegation 
in the bill that he has been applied to for that pur- 
pose. The character in which the counsel for defend- 
ants appear, has not been brought properly .to the at- 
tention of the court. 

But the question is asked at last. Is there no way 
of stopping in limine a vicious unconstitutional act — 
one ultra vires legislative competency ? This very 
question would seem to have been in the mind of 
the General Assembly when the act of 1873 was 
passed, and that, balancing the advantages and evils 
on the one side and the other of allowing suits to 
be brought for such a purpose, the conclusion was to 
deny the right to sue with that or any other object 
in view. In the meantime no citizen is suffering. 
There is a large bonded debt of the State outstand- 
^Pgj ^J every one's admission ; the taxes are laid for 
the two current years, and must in any event be col- 
lected ; the bondholder takes his bond subject to the 



280 NASHVILLE: 



Lynn v. Polk. 



possible unconstitutionality of the act ; the tax-collector 
(any one of the hundred in the State) can make the 
question of constitutionality by refusal to receive the 
bonds or coupons, and then comes the real controversy, in 
which the State really though not formally, and the 
bondholder or coupon holder nominally and really, are 
the parties. Why shall we precipitate this quarrel, which 
may otherwise never arise? The compromise seems 
to be one favorable to the State and its citizens; one 
that will probably be accepted by the bondholder at 
his own risk ; one that for the present, and probably 
in all the future (in view of the growing strength 
and prosperity of the State), can really oppress no- 
body ; one that provides only for the legally issued 
bonds of the State, of which legality the State's own 
officers are to be the arbiters; one that provides for 
a debt, against the validity of which there is scarcely 
a murmur in the bill now before the court; one that 
promises to f'tretch the rainbow of peace over a long 
agitated and divided people. Certainly there can be 
no irreparable mischief in denying the right to agitate 
this question in advance, which may otherwise never 
be agitated. There may be irreparable mischief in 
hastening a conflict which time and deliberate thought 
may indefinitely postpone. 

But it is said that if this question is not decided 
now, and the seeming contract offered is completed 
and the coupons go into the hands of the bondhold- 
ers, the Supreme Court of the United States will hold 
that to be a real contract, which, by injunction now, 
before the transaction is a fait accompli, we can stop 



DECEMBER TERM, 1881. 281 

Lynn v, Polk. 

in limine. To do this as argued above, this court 
must have jurisdiction to act at all, and they must 
be of opinion also that the proposition to the bond- 
holder is ultra vir(8 as respects the Legislature. If 
they are of the latter opinion, it is because the con- 
tract would, in their view, be unconstitutional. If, 
when complete, it should be unconstitutional, it will 
be so declared by the Supreme Court of the United 
States, and it is not legitimate to argue that they 
would do otherwise than right. Is it legitimate to 
argue that this court should seize an opportunity to 
declare one of our own acts unconstitutional for fear 
that some other court of competent jurisdiction might 
sometime decide otherwise? There is a great deal of 
grandiloquent tnlk ahout State sovereignty, some of 
which is rather frothy. The truth is, by the union 
of the States Tennessee has surrendered part of her 
sovereignty, the present Constitution of the United 
States is the exponent of this Union, and upon the 
matters surrendered the Supreme Court of the United 
States is the ultimate expounder. It is neither legit- 
imate argument to a court to deprecate it, nor decent 
action of a court to attempt to evade it. It is 
scarcely insisted by any one that this is not substan- 
tially a suit against the State if the act is constitu- 
tional. Many authorities might be cited to the eflTect 
^ that in that case it is ; indeed, it is inevitably so. 
It is alone upon the supposition that the act is void 
in some way, that this court can now assume juris- 
diction. If it be void and its execution should some- 
how be stopped," yet if the State is not a party, nor 



282 NASHVILLE : 



Lynn v. Polk. 



its officers, and if the individuals who are made de- 
fendants choose to fold their hands and make no de- 
fense, or a mere sham defense, then an act of the 
Legislature, or what seems to be an act and has all 
of the forms of an* act, may be declared unconstitu- 
tional and void, and enjoined from execution, without 
having anybody before the court to contest such a de- 
cision who is interested in the issue — the tax- payers, 
thirty-five in number, against three individuals who 
do not represent the State. This exercise of the 
gravest power that can fall as a duty upon this court, 
might affect the purpose of preventing the preparation 
and issuance of the bonds, but could the decree stand 
upon any precedent or any known principle of law? 
Is it possible to try the constitutionality of what pur- 
ports to be a State law with the State or its officers? 
Certainly not, looking to the principle of State sover- 
eignty and the act of 1873, without the Staters license. 
Is it possible to try such a question between a tax- 
payer (whom for the present I suppose to have an 
interest) and a stranger? The very question, thus 
asked, is startling. Is it possible to try such a ques- 
tion between a tax-payer and an officer of the State, 
who quoad hoc does not act by authority of the State, 
but who, of his own perverse will, assumes to possess 
authority which he has not? Does his ultra vires 
assumption of authority take him out of the category 
of mere strangers to the act? 

From these considerations, it would seem to me to 
result that no general injuction, in any case under the 
laws of Tennessee to be administered in her own courts. 



DECEMBER TERM, 1881. 283 



Lynn v. Polk. 



siuce the act of 1873, can, without her own license, 
ever be obtained against what purports to be an act 
of her Legislature, where the act is of a public nature 
affecting the rights of citizens generally. There is no 
precedent of such a case. Such acts may be declared 
'void as between other contestants and one party or 
the other be enjoined from taking benefit or acting 
under it. As to local public acts, such as acts to 
create new counties, remove county seats, etc., the rule 
may be different, and the commissioners appointed to 
lay ofi^ and organize the new county, etc., might pos- 
sibly be enjoined. No case of this kind has occurred 
since the act of 1873, and none before that act in 
which the question of jurisdiction was made. The 
jurisdiction, however, seems to have been assumed more 
than forty years ago, in the case of Bradley v. The 
Commissioners to lay off the county of Powell: 2 Hum., 
427. And this case has been followed and approved 
since. The assumption of jurisdiction by the court* 
and acquiescence in it, is strong evidence in general 
that it was properly assumed. If this class of cases 
be an exception to the rule laid down, it is the only 
one. But is it an exception? The* tax- payer who 
filed the bill in the case above from 2 Hum., was the 
tax- payer of a county whose interests were to be af- 
fected by the proposed action of the commissioners. 
There could be no objection to him as a complainant. 
The commissioners were in a condition to do and pro- 
posed to do an act which, whether the act of assembly 
was constitutional or not, would be irrevocable and 
not ever thereafter examinable. The county when once 



284 NASHVILLE: 



liynn v. Polk. 



laid off would become a political entity beyond the 
reach of the courts, as decided in the case of Ford v. 
Farmer, 9 Hum., 152. The mischief would be irrepar- 
able. What might have been said in so extreme a 
case by the court if the question had been made we 
do not know, but whatever they might have said, the* 
case would have been no authority here. How far 
the act of 1873 might be applied as a bar to injunc- 
tion in such a case it is needless to inquire. I think, 
however, it could scarcely be said that the State would 
be reached in such a proceeding, which could in fact 
only reach the interests and feelings and convenience 
of the citizens of at most one or two adjoining coun- 
ties between whom the State stood as a sort of indif- 
ferent common arbiter. The cases in regard to the 
removal of county seats can have no possible analogy 
to the case before the court, as these were cases be- 
tween the new and old positions litigated by citizens 
and partizans on each side. The unreported case of 
Ensley v. Knight, referred to by counsel, as stated^ 
in no manner applies here. The tax-collector who issued 
the distringas in that case did so before the law au- 
thorizing it torfk effect, and of course the State had 
nothing to do with it even prima facie. My position 
so well supported as I think upon principle, is also 
supported by the following authorities: Act of 1873; 
Black V. Fleece, 2 I^ea, 566, as to real controversy; 
Hartranft, Gov,, 35 Penn., 444; 40 Wiconsin, 205- 
211; Williams v. Register, Cooke, 215; Jonesboro T. 
P. Co, V. Broton, 8 Baxt., 490 ; Morgan v. Graham, 
1 Woods, 134; Decatur v. Paulding, 14 Peters, 497; 



DECEMBER TERM, 1881. 285 



Lynn v, Polk. 



Gaines v. Thompson, 7 Wall., 348 ; Gibbs v. Greene, 
54 Miss., 593 ; Mississippi v. Johnson, 4 Wall., 475 ; 
Stale ex rel. Bloomstein v. Sneed, 9 Baxt., 472; Watson, 
Trustee v. Morrotv, Treasui^er, with many other author- 
ities. The cases cited upon the other side are those 
of Burch V. Baxter, 12 Heis., 601 ; Dovyrie v. Frdnois, 
2 Yer , 555 ; Bntton v. Fry, 2 Heis., 306 ; Fui^man v. 
Nichol, 3 Cold., 432 and 8 Wall., 44; Union Co. v. 
•Akers, 12 Heis., 606; Uhl v. Gaines, 4 Lea, 352; 
Osborn v. f/. 8, Bank, 9 Wheat., 846, and the cases 
founded on it; Mott v. Penn. R. R,, 30 Penn,, 33, 
with other authorities. 

These authorities of complainants have been zeal- 
ously pressed upon the court, but as it seems to me 
for various reasons applying to each case, they fail to 
sustain their position as to jurisdiction. Of course it is 
impossible, within the limits of a judicial opinion, to 
give each one a discussion to show its inapplicability. 
The case of Burch v. Baxter, and several others like 
it, are cases where the jurisdiction was submitted to 
and the question not raised. These were cases besides 
to compel the oflBcer to do what the State had or- 
dered; or to abstain from doing what the State had 
forbidden. There is no case where the officer has 
been prohibited from doing what the State seems to 
have ordered to be done, with the possible exception 
of the case of Bradley v. The Commissioners, and like 
cases. These have been already sufficiently commented 
upon. The Federal court cases, beginning with Osborn 
V. Bank, were cases decided against States, in effect 
making State officers parties and shutting the eyes of 



286 NASHVILLE : 



Lynn v. Polk. 



the court to the fact that the State stood behind the 
oflScer, and looking only to the record where the State 
was not formally a party. These cases have not been 
followed in our State and could not be, at any rate 
since the act of 1873. They had their origin in fact, 
in my opinion, pretty much upon the maxim atU in-- 
veniam aut faeiam viam, and their principle has not 
been followed in the Federal courts where the officers 
were officers of the United States, their own sovereign. 
This has been shown by the citation of a number of 
oases in the courts of the United States, notably the 
case of Mississippi v. Johnson, 4 Wall., 475-491-501. 
In that case, too, it was held that it was immaterial 
whether the party was described as an officer or an 
individual. Our courts have followed the rule in re- 
gard to their sovereign, Tennessee, followed by the 
Federal court in regard to theirs, the United States. 
Giving all due weight to these authorities relied on 
by complainants, it seems to me that the great pre- 
|)onderance of authority is with the defendants. This 
is then substantially a bill against the State of Ten- 
nessee, to enjoin its action through its officers in the 
execution of one of its laws, and contrary to the prin- 
ciple which forbids a suit against the sovereign in his 
own courts, and especially in conflict with the act of 
1873, which forbids such suits. The act attacked be- 
ing prima facie a law of the State, is to be considered 
conclusively so against the present mode of assailing 
it, and to attempt to obstruct its execution in this 
mode is to attempt to enjoin the State in its own 
courts. A decree of injunction in this case would 



DECEMBER TERM, 1881. 287 

Lvnn r. Polk. 

present the strange anomaly of stopping the execution 
of a law where there was no party interested in that 
law but the complainants (if they are) before the court. 
The authorities besides hold this to be correct doctrine, 
that if the State is a necessary party and cannot be 
brought before the court, no decree can be rendered. 
What might be the effect of a decree against defend- 
ants as individuals it is not necessary to inquire, in 
view of what has been already stated. 

I may remark in passing, that ns a citizen I was 
not in favor of the passage of the 100-3 act, as it is 
called, nor of the coupon-feature in it; if anything 
better could be done which would be accepted by the 
creditors. T preferred to reduce the capital of the 
debt and pay a larger interest on the reduced amount, 
and to induce (he creditor to be satisfied, if possible, 
with the pledge of the faith, credit and honor of the 
State; but other ideas prevailed and I have now, in 
conjunction with others, to pass upon the binding na- 
ture of the measures adopted so far as they can, if at 
all, come within the scope of judicial cognizance. 

The bill then in this case, upon the considerations 
above set forth, should in my opinion be dismissed. 
The discussion of other questions under this view might 
be unnecessary; but as other questions of great im- 
portance have been di.scussed, and. as it may be desirable 
that opinions should be expressed upon them, I pro- 
ceed to consider the question whether the complainants, 
as tax- payers and citizens of the State are in their 
right (otherwise admitting the jurisdiction of the court) 
in filing their bill. It is not easy to conceive how 



288 • NASHVILLE : 



Lvnn t>. Polk. 



the mere citizen and tax-payer can intervene against 
the law unless it be in the present manner and at 
the present stege of the proceedings under the act. 
But let us see first whether as citizen or tax-payer, 
or in his joint character of both, he can in any event 
or at any time assert himself through the courts, or 
in any other way than through his political represent- 
tives. The act is not one proposing to contract a 
new State loan, nor one proposing to pay a doubtful 
or unrecognized debt, nor one in anyway proposing to 
increase the present or future burdens of the State in 
a pecuniary point of view. It only proposes to pay 
hereafter three per cent, by way of interest on the 
legally issued bonds of the State on all of which I 
mean the legally issued bunds we are now bound to 
pay six per cent. Now it was competent for the 
Legislature itself to have fixed what bonds and what 
amount of bonds we owe, and the citizen and tax- 
payer could have said nothing against it. All agree 
that he could have done nothing toward enjoining the 
tax laid to meet the interest on the debt thus ascer- 
tained now or hereafter. Hereafter, through his rep- 
resentatives, if there should come a time when he 
desires that the tax should no longer be laid because 
it would be oppressive from a change of times and 
circumstances, he can endeavor to elect a representative 
who will refuse to lav the tax, which it is to be 
recollected is now reduced on the legally issued bonds 
of the State from six to three per cent. If his rep- 
resentative should, under the pressure and exigency, 
decline to lay the tax, the tax-payer would not have 



DECEMBER TERM, 1881. 289 



Lynn v. Polk. 



it to pay, and so much the better for him pecuniarily. 
If, however, the representative should lay the tax not- 
withstanding the wifiihes of the tax- payer, he would be 
bound by it — his pecuniary burden would not be in- 
creased though his ability to pay might be diminished. 
This is a matter to address to his representative. 
Pecuniarily the burden of the tax- payer could never 
be increased under the law, relatively it might become 
more onerous But it may be said the hands of the 
representative would be tied by the constrictive power 
of the coupon so that he could not listen to the cry 
of distress of the tax-payer. That he may listen to 
that cry this court is asked now to unbind his hands. 
But his hands will be free whenever it becomes to be 
a question between starving out the government and 
the payment of interest on a debt. This solution may 
not apply to every fretful clamor which may be raised 
by the people from short crops or small losses aggra- 
vated by the cunning and declamation of demagogues. 
Bnt it will apply whenever there is a radical change 
in the circumstances of a people. All public contracts 
are subject to this inherent infirmity. The coupon- 
feature of the act will be discussed in another place 
in this opinion. The question, however, of ability or 
inability to pay taxes to be applied to an existing 
debt can scarcely arise in the discussion of the pecu- 
niary interest that a tax- payer has in the passage of 
a law for its payment. The interest that an indi- 
vidual has as a citizen generally in the future of a 
State, demands no consideration under the head just 

now being discussed. To allow, as in this case, thirty- 
19— VOL. 8. 



290 NASHVILLE : 



Lynn v. Polk. 



five citizens and tax-payers of the State, upon a bill 
sworn to by one of them who has manifestly but small 
personal knowledge of the facts stated, in a bill, to 
arrest a great public measure which niay be of vast 
importance to the State and for its good, seems some- 
what startling, and the more so when possibly these 
may be the only dissatisfied persons in the State. 
And this too without any allegation that the Governor 
or Attorney-General has been applied to^ and refused 
to act. This would at least seem to have been ne- 
cessary if there be anything in the analogies attempted 
to be run between tax-payers in this case and tax- 
payers of counties and other corporations and q^uiri 
corporations: See State v. McConiiell, 3 Lea, 332. Un- 
der sees. 3409 and 3417 the legality and authority of the 
funding board could perhaps have been tried and de- 
termined and in the meantime its action restrained. 

On the other hand the question comes back always, 
have not these tax-payers an interest in the matter, 
and have they not a right to have that interest pro- 
tected? It is not every interest of every individual 
in a civilized republic that can be separately protected. 
Though the community consists of the individuals that 
compose it and each has a right and interest in any 
of the common purposes, it does not follow that this 
right and interest may be pursued at all hazards and 
under all circumstances through courts, at whatever 
risk to the rights and interests of others. Commu- 
nities exist upon the principles of surrender and com- 
promise as well as upon those of individual independ- 
ence and self-assertion. 



DECEMBER TERM, 1881. 291 

Lynn r. Polk. 

As a question of authority the case seems to stand 
thus: The complainants have cited many authorities 
where tax-payers have been allowed to sue as citizens, 
t^x- payers of counties and of municipal corporations 
and other qiiaai corporations, partaking in part of gov- 
ernmental and in part of purely corporate functions. 
These by analogy are attempted to be applied to a 
<jase where the rights of a tax-payer are or seem to 
be affected by the laws of a State. The most notable 
of these are the cases of Bradley v. The CkymmissionerSy 
2 Hump.; with other like cases which have been al- 
ready commented on for another purpose; Winston v. 
Tennessee & Paoifie B. R. Co., 1 Baxter, 60, and other 
^cases. All of these stand upon the idea that the 
party to be affected by them and who sues is to be 
injured in his corporate relation to city, county or 
town, where the corporate funds procured by taxation 
or otherwise may not be applied to any but corporate 
purposes. But the State is not a corporation. She 
is sovereign. She sustains no trust or ^asi trust re- 
lation, in a legal sense to her citizens. The State 
may, subject so far as the Legislature is concerned to 
the constitution, do what she pleases with her own. 
Her acts, if they be her real acts, can be questioned 
by nobody even when she allows herself to be sued. 
How then can she be considered a trustee and liable 
to be assailed by her tax-payers as cestuis que trust f 
There are but two cases cited by complainants that 
seem to allow such suits to be brought, one is that 
of Mott V. Pennsylvania B. B. Co., 36 Penn., 9, the 
authority of which in the two main points decided by 



292 NASHVILLE : 



Ltdii v. Polk. 



it has been overturned in numerous other cases since 
decided^ one in the courts of the same State — {Hart- 
raftf Gov., 86 Penn.) The case itself went off aa 
between other parties clothed with other chajractersy 
though as to some of the parties otherwise properly 
before the court it is stated that they were tax-payers 
and thus had an interest in the question and had a 
right to be heard. The other case is that of Oallo^ 
way V. Chatham R. R. Co., 63 N. Carolina, 147. In 
this case the jurisdiction was submitted to and indeed 
asked to be assumed by both parties. The court does, 
however, remark: ^'It is better for all sides to have 
the matter settled now and here; and we were grat- 
ified to find that the court has jurisdiction and can 
determine the question in the mode in which it is 
presented in this bill." The court cites as authority 
for this, Manly v. The City of Raleighy 4 Jones' Eq., 
370, which was the case of a tax-payer against the 
city, and the above case of MoU v. Penn. R. R. Co. 
On the other hand the defendants have cited the case 
of Morgan v. Graham, 1 Woods, decided by Judge 
Bradley of the Supreme Court of the United States. 
This case seems to be almost at one with the case 
now before the court, and most emphatically denies 
the right of the tax-payer to sue in such a case. 

The general rule in regard to cases where the in- 
jury complained of is one to the general public, is, 
not to allow a person to sue who can show no special 
damage to himself, but only such damage as he may 
incur in common with all others. It is damnum 
ahsque injvria. If the present case were one clearly 



DECEMBER TERM, 1881. 293 

Lynn v. Polk. 

of irreparable mischief^ I should hesitate much to deny 
the right of complainants to sue, if this were the only 
difficulty in their way. But being of opinion that it 
is not a case of irreparable mischief, if indeed any 
mischief at all, I am of opinion that as citizens and 
tax-payers they have no right to a status in this court 

The next charge in the bill of complaint to be 
considered, is that of fraud, bribery and corruption 
against a portion of the members of the Legislature 
(part of the majority) that passed the act of 1881, 
now under consideration. I was at first of opinion 
that this charge was not made with sufficient definite- 
ness to demand the attention of the court; in other 
words, was not well pleaded. But in view of the 
case of Anderson v. MuUeniXy 5 Lea, 289, this being 
a general motion to dismiss for want of equity, I 
changed that opinion. It seems, however, somewhat 
contrary to ordinary fairness that the characters of 
members of the Assembly should be put on trial with- 
out their being parties to the bill and without oppor- 
tunity of defense. On this motion to dismiss, as I 
understand the law, the facts stated in the bill are 
not in strictness admitted to be true, but it is said 
in effect, take them to be true and yet they are ir- 
relevant and immaterial to any relief demanded upon 
them. 

Can, then, the bribery of a member or members 
of the Assembly be looked to, to impugn an act of a 
general nature making or offering to make a contract 
between the State and individuals? If the bribery 



294 NASHVILLE: 



Lvnn V, Polk. 



appeared in the face of the act^ no right could be 
claimed or asserted under it. The party setting up 
rights under it would be repelled from the courts, the 
turpitude appearing upon the face of bis muniment of 
title. This is the rule in the case of usury appear- 
ing on the face of a note sued on. There is no case 
where an act of a Legislature has been held invalid, 
where the legislator was not imposed on by falsehood 
or fraud of some other person. In such cases, those 
in which fraud was practiced on the law- maker, courts 
might hold the act was not his act and therefore void,, 
and even then it would be only practicable as between 
parties who set up claims under the act as against 
other private parties. These general declarations are,. 
I think, warranted in view of the searching examina- 
tion of authorities by counsel in the present case. 
The legislator's own wickedness has never been made 
a subject of inquiry in courts — treachery to the State's 
interests by the legislator has never been made a ground 
to invalidate an act. The cases are numerous where 
such an inquiry has been sought, but it has been 
uniformly denied. One individual it may be is not 
allowed by deoeption to make a cat's paw of the Leg- 
islature to obtain a private advantage. So far and 
no farther has any court gone or evinced a willing- 
ness to go. The cases of the State v. Reed^ 4 Har- 
ris & McHenry, 10 and 11, and of WUliamaon v. 
Williamson, 3 Smedes & M., 744, have been cited by 
complainants in support of their doctrine. Both of 
these were cases where the Legislature was imposed on 
by the fraud of one who sought an advantage under 



DECEMBER TERM, 1881. 295 

Lynn v. Polk. 

a private act. The motive of the Legislature was not 
sought to be inquired into or impugned. In the first 
no relief was granted ; and no relief in the second, 
I think, on the ground of fraud practiced on the Leg- 
islature, though it is stated in both of the cases that 
relief might be granted on this ground. In the pre- 
sent case the legislator is charged with treachery to 
his trust to the State, and thus the motives of his 
vote are put in question. Here the act is the act of 
the legislators — their will ; in the cases cited the leg- 
islator being imposed on it is not his act, and to prove 
fraud against the beneficiary of the act brings no 
scandal on the Legislature. The State is not con- 
cerned as it is only one individual cheating another 
through the mistake — the instrumentality of the Legis- 
lature; but if bribery was allowed to be shown, and 
could be shown, should it avoid the law, it may be 
a good one and the legislator may have voted as he 
intended without the bribe. Again, when you get into 
motive, what shall be considered an illicit one? Any- 
thing but money paid in hand? Shall owning bonds — 
a friend or relative owning bonds — yielding to cajole- 
ment — pushing the fortunes of a political leader — act- 
ing to mortify and defeat a prominent political oppo- 
nent? This worse than Serbonian bog in which we 
should find ourselves floundering can only be avoided 
by according without question to that branch of gov- 
ernment (the Ijegislature) the powers with which it 
has been entrusted by the Constitution. It may be re- 
marked properly in this connection, that equally with 
acts procured by fraud on the Legislature, would acts 



296 NASHVILLE : 



Lynn v, Polk. 



procured or extorted by force or fear — military power — 
a mob — an insurrectionary force — be void on the ground 
that they expressed the will of the ruffians who sur- 
rounded them and not the will of the legislators them- 
selves. One other case adduced by the complainants, 
is that of the State v. Cincinnati Gas Light Co.y 18 
Ohio, 301. This was the case of a city corporation 
where, agreeing with our case of Memphis v. KimbrOy 
12 Heis., 13, the court took a distinction between the 
law-making and the contracting power of the coiporaie 
authorities, and said that as to the ' latter power and 
its exercise fraudulent motives might be inquired into. 
In the same breath, however, the court say that the 
motives of a State Legislature cannot be inquired into 
if its act be within its constitutional sphere. The 
court does not as to State laws recognize the distinc- 
tion so urgently pressed here between municipal and 
contractual legislation. The simple question as they 
said and as £ hold is, is the act an exercise of the 
legislative power conferred by the Constitution? These 
are all the cases referred to by complainants in sup- 
port of their claim to inquire into the motives of the 
Legislature. Some obiter dicta from other cases are 
quoted as supporting complainants' position, but when 
examined in their connection afford it no aid. Of 
this class is especially a small excerpt from the case 
of the State v. Ward & Briggs, 9 Heis., 110, where 
Judge Nicholson says that the persons appointed to 
arbitrate a matter with Ward & Briggs were not a 
State commission or special court, but simply arbitra- 
tors. He says further, quoting, "but it is simply a 



DECEMBER TERM, 1881. 297 

Lynn v. Polk. 

proposition by the State to divest itself of its sove- 
reignty pro hae vice, to meet two of its citizens on 
equal terms in establishing a board of arbitration. 
When the proposition was accepted it became an ordi- 
nary arbitration — nothing more — nothing less/' It is 
certainly true that the State may, as to the party with 
whom it contracts, put itself in many cases on a level 
with it — it may even become a stockholder, a quasi 
partner, |ind as to the other stockholders and partners 
be held as an individual, but the act by which it is 
enabled to become such partner or stockholder is a 
sovereign act between it and the citizens of the State, 
and the motives of it-s authors cannot be inquired into. 
This is all that can be found in support of com- 
plainants' position on the subject of bribery. What is 
there on the other side? Judge Cooley, in his Trea- 
tise on Constitutional Limitations, under the head of 
"Inquiry into Legislative Motive," page 225, says, 
'^and although it has been at some times urged at the 
bar that the courts ought to inquire into the motives 
of the Legislature where fraud and corruption were 
alleged and annul their action if the allegations were 
established, the arffument has in no case been acceded 
to by the judiciary, and they have never allowed the 
inquiry to be entered on.'' Dillon, in his work on 
Municipal Corporations, vol. 1, sec. 311, says: "It is 
well settled that the Judicial Branjch of the Govern- 
ment cannot institute an inquiry into the motives of the 
Legislative department %n the enactment of laws. Such 
an inquiry would not only be impracticable, but the 
assumption and exercise of such a power would result 



298 NASHVILLE : 



Lynn t;. Polk. 



in subordiuating the Legislature to the courts.*' Sup- 
porting these opinions and deductions of Judges Cooley 
and Dillon, the following cases are referred to: Fletcher 
V. Peck, 6 Cranch, 27 ; Sunbury, etc., R. iJ. Co, v. 
Cooper, 33 Penn., 878 ; WHght v. DeFree8, 8 Ind., 302 ; 
Humboldt County v. Churchill County, 6 Nevada, 40; 
Slack et aL v. Jacob, 8 W. Va., 612; Harpending v. 
Haight, 38 California, 189 ; Flint, etc., Co. v. Woodhull, 
26 Mich., 99; State v. Fagan, 22 La. Anp., 645; 
State V. Cardovo, 5 S. C, 312; State v. Hays, Treats- 
urer, 49 Mo., 604; People v. Draper, 15 N. Y., 646; 
MeCullock V. State, 11 Ind., 424. This last was a case 
of a private act, and even there it was held that the 
motives of the legislators could not be inquired into. 
Theee cases have been sharply critieized by complain- 
ants' counsel, but their force has been in no manner 
broken. The lack of space* in an opinion forbidd the dis- 
cussion of each particular^ case ; the curious can examine 
them, and thev will be found to sustain the conclusions 
of Judges Cooley and • DilLon above referred to. 

The power to pass a law being conceded, the in- 
iegrity of the Legislature cannot be inquired into. 
With a sufficient motive, bribery might always be p^^oved 
by perjury. The fullest representative of the State is 
the Legislature. For mistakes of power under the 
Constitution, the courts whose business is the study of 
laws and constitutions are a corrective, for their lack 
of honesty there is no corrective. The Constitution 
entrusts the Legislature (within certain bounds) with 
making laws both properly municipal and laws bind- 
ing the State by contracts, both are legislative powers 



DECEMBER TERM, 1881. 299 



Lynn v. Polk. 



and conferred in one and the same grant. There are 
no limits to them in the Constitution except as to 
I>ower. Can courts make other limits? What a quak- 
ing bog would Tennessee stand upon in regard to its 
projects and enterprises, if of all the States, the con- 
tracting power of its Legislature should be subject to 
this impeachment? With what face could it go into 
the markets of the world with this weak spot upon 
its credit? Its constitution, its laws, its bonds might 
all be looked to, fair on the outside but with this 
possible canker at the root. Let one case of briberr 
upon a bare preponderance of evidence be established 
and it would affix a stain upon her name which no 
time could effiice. There must be trust somewhere. 
The charge of bribery is to be submitted to a judge 
who may himself be secretly bribed. Quis custodiat 
custodes. A General Assembly does not pass in which 
contracts are not made or sanctioned or acted upon. 
The magnitude of the present case does not make it 
differ in principle from other cases which may arise. 
The precedent once set, the world would ring with 
the scandal of such inquiries, which would have their 
only home and abiding place in Tennessee. And whether 
such charges failed or were successful, the disgraceful 
inquiry would almost equally in either case damage 
our reputation. Ten men tax-payers (of whatever 
amount) need only be found to raise the clam- 
orous cry and with means to bring it into court against 
any contract made or proposed by the Legislature, 
carry on an unseemly struggle which could not fail 
to bring discredit if not dishonor upon the State. 



300 NASHVILLE : 



Lynn v, Polk. 



Where, then, would be the security that the judi- 
ciary would not • absorb the legislative, which it was 
intended should be at least its equal. The judiciary 
have long assumed the power to say when the Legis- 
lature has exceeded its authority under the Constitu- 
tion; to allow it to say that department has abused 
its powers, would utterly destroy its independence. The 
absorption by the judiciary would be complete. 

But it is said the judiciary itself is not, in respect 
to this kind of a charge, more independent than the 
Legislature. The judgment of a court cannot be as- 
sailed for bribery of a judge, it may for fraud upon 
him; so perhaps may the act of the legislator. The 
judge may be impeached, I will not say that he may 
not even be sued for a corrupt judgment, though I 
know of no such case; the legislator may perhaps be 
indicted. All this, however, is aside from the ques- 
tion of the absorption of the powers of one department 
by another. However the judge may be put on his 
trial upon his motive, it will be the judiciary acting 
upon the judiciary and not one co-ordinate branch sub- 
ordinating another. The high court of impeachment 
itself is but an extraordinary court the functions of 
which are in no manner legislative. Is there then 
no remedy against the act of a bribed Legislature? 
In the nature of things there are many evils for which 
there is no precise remedy. The vis medicatrix ncUuroB 
must be relied on where the pharmacopoeia furnishes 
no specific nostrum. Patience and the action of the 
people must be relied on to set such things right. 

What, then, becomes of that absolute sovereignty 



DECEMBER TERM, 1881. 301 

Ljnn V, Polk. 

which is said to reside somewhere under all forms of 
government — that sovereignty which, tinder an absolute 
monarch or an omnipotent parliament, may afford re- 
lief? The arbitrary omnipotence of parliament exists 
nowhere under our political and social system, nor the 
unbridled will of a czar or sultan. By the division 
of power and its deposit in co-ordinate branches, it 
may be that something of this ultimate sovereignty is 
lost. Is such a loss to be deplored? Is it not a 
necessary surrender of wild liberty in order that a 
chastened, disciplined and balanced' freedom may be 
thoroughly enjoyed? The power of an individual to 
sin, to lie, or steal, or murder, may be neeessary to 
that moral agency by which he may qualify himself 
for a residence in the everlasting dungeon built of 
old .for evil-doers, or the brighter mansions builded 
for the blest. The loss even of this power, it may 
be, would be all the better for the majority. The 
limitations of power in an organized civilized republic 
do not affect its absolute powier as the representative of 
the social system of humanity. 

But I have said enough, perhaps, upon this posi- 
tion of complainants as one founded whether upon 
reason or authority, though the reasons against it are 
by no means exhausted. One other remark, and I 
dismiss the point. This proceeding, it is said, is to 
reach the bondholder ; but the bondholder has not 
accepted the proposition; he neither is nor could he 
be before the court now, nor could he be reached 
under the authorities if he were before us. Certainly, 
however, the time to use the argument is when the 



502 NASHVILLE : 



Lvnn v. Polk. 



bondholder shall demand something under his new 
bond. 

I conclude, then, that this charge in the bill, even 
if well pleaded in the ordinary sense, is, if true, irrel- 
evant and immaterial, and forms no groucd to impugn 
the act of Assembly iB question. 

The next question demanding the attention of the 
<;ourt is the objection to what is called the "coupon 
feature" of the act. 

The precise question raised by this objection has 
never, so far as I know, been presented to a court, 
except in a late case in Virginia — that of Antoni v. 
Wrighty 22 Grattan, 833. The objection in <hat case 
was held not to be well taken, by the supreme court 
of that State. That case is at one with ours, with 
two apparent or real exceptions, — one, that there the 
-contract had been executed, while in our case it is 
only offered to the bondholder; the other, that there 
was a provision in the Constitution of Virginia that 
warranted the contract. In Hartman v. Greenhow, 12 
Otto, the Supreme Court of the United States had 
before it some of the Virginia coupons, and sustained 
and in all respects approved the case of Antoni v. 
Wright. There being no authority upon the other 
side in a case in any way similar to the present one, 
these two authorities might well be followed by us, 
if there is nothing in the exceptions above stated. 
The question now under consideration being only one 
of power on the part of the Legislature to enact this 
coupon feature, it would seem to me obvious enough 
that the same power that would enable the Legisla- 



DECEMBER TERM, 1881. 303 

Lynn v, Polk. 

ture to make such a contract, would justify them in 
offering it. If they have no power to make the con- 
tract, then it might be well argued that now, if pos- 
sible, it should be arrested in fieri. It has been so 
argued, but this argument is met by the want of 
jurisdiction. The other variation may be more serious. 
The constitutional provision of Virginia which was 
quoted by, the court in Antoni v. Wi-ight, upon which 
some reliance was placed, and which is not to be 
found, in form at least, in our Constitution, was as 
follows: '*The General Assembly shall provide by 
4aw a sinking fund to be applied Solely to the pay* 
-ment of the principal of the State debt, which sink- 
ing fund shall be continued until the extinguishment 
of such State debt; and every law hereafter enacted 
by the General Assembly creating a debt or author- 
izing a loan, shall provide a sinking fund for the 
same." ^*This provision," says the Virginia court, 
"does not invest the power in the Assembly to ap- 
{propriate a part of the annual revenues in advance, 
but imposes the obligation on it to exercise the recog* 
nized power with which it was invested for the pur- 
pose indicated in the way prescribed. And now, if 
-it is a legislative function of the General Assembly to 
create a sinking fund by an appropriation of part of 
the revenue thirty-four years in advance to extinguish 
the principal of the public debt at its maturity, which 
appropriation cannot be disturbed or diverted from its 
object by subsequent Assemblies, it would follow, that 
to make an appropriation in advance for the payment 
-of the interest of the public debt, is not contrary to 



804 NASHVILLE: 



Lynn v. Polk. 



the legislative function. And being stipulated for in 
this case and made a part of the contract^ its repeal 
by a subsequent General Assembly would fall within 
the prohibitory clauses of both the Federal and State 
Constitutions above recited.'^ Now^ in all thiS; the 
Virginia court does not regard the Constitution as 
enabling the Legislature to create a sinking fund by 
anticipation out of part of the revenue for each year, 
but, recognizing their power to do so, imposes it upon 
them as a duty. This power, then, existing as to 
the sinking fund with a. duty added, the same power 
exisiB as a legislative function to provide by anticipa- 
tion as to the interest. Now, here the duty to pro- 
vide for the interest of an existing debt by the Leg- 
islature is perfect, and would not be strengthened by 
being expressly made so in a Constitution, especially 
as there would be no mode of enforcing the duty in 
either case. The Legislature of either State might 
have refused to discharge its duty; the duty to pro- 
vide for interest being as imperfectly sanctioned in 
Virginia as with us. What, then, has the Constitu- 
tion of Virginia to do with the coupon feature of 
their law. It was the result of the general delega- 
tion of legislative power to the General Assembly ; 
and so in our case. If the Virginia act of 1871 
was held valid by its court, and the decision approved 
by the Supreme Court of the United States, why may 
not ours be? At any rate, I have the decision of 
this highly respectable court (bolstered by that of the 
Supreme Court of the United States), adhered to on 
rehearing, and approved by the same court with dif- 



DECEMBER TERM, 1881. 305 

Lynn v. Polk. 

ferent members, in 24 Gratt., 159; 30 Gratt., 134, 
and 33 Gratt., 237, as a warrant, in a case precisely 
similar, for this opinion. The court, in Antoni v. 
Wright y did not seem much troubled by the objection 
that they were forging an infrangible shackle upon fu- 
ture revenue legislation, but only as to the question 
of making anticipative appropriations of any character, 
and without reference to the danger of the creditors 
seizing the revenue before it should reach the treas- 
ury. To show more fully the analogy between this 
last case and ours, some further statement of it is 
perhaps necessary. An act of the Virginia General 
Assembly of 1871 made the coupons of its bonds re- 
ceivable for all taxes and dues of the State, on a 
bonded debt as large as ours, and with an interest 
of six per cent. This act having been carried into 
eflfect by acceptance of the bondholders, was repealed 
bv an act of 1872. It is the validitv of this latter 
act which came under consideration in the case of 
Anttmi v. Wright^ the State allowing itself to be sued 
under a general law. The decision was by a major- 
ity of the court (one judge dissenting) against the 
validity of the act of 1872, and in support of the act 
of 1871. The case was well considered, and the 
opinion is long and able. It rests itself upon reason 
and principle, and upon the following cases: New 
Jersey \, Wilson y 7 C ranch, 154, opinion by C. J. 
Marshall; Woodmtff v. Trapnall, 10 How., 190; Far- 
man v. Nichol, 8 Wall., 44, decided unanimously by 
the Supreme Court of the United States; Exchange 

Bank of Va. v. KnoXy 19 Gratt., 739; Home of the 
20— VOL. 8. 



306 NASHVILLE : 



Lynn v. Polk. 



Friendless v. JRotise, 8 Wall., 430; OUy of Richmond 
V. R. & D. R. R. Co., 21 Gratt, 604. Substantially, 
every argument that has been urged here against our 
^ct was urged there, and met and answered, I repeat, 
with signal ability. 

After all, however, this case of Antoni v, WrigJU, 
supported as it is by other authorities and by the 
approval of the Supreme Court of the United States, 
is not binding authority upon this court. I proceed, 
then, further to examine this question upon principle 
and reason, and shall endeavor to see, with such lights 
as I have, whether there is anything in this coupon 
feature manifestly in conflict with the Constitution of 
Tennessee. I have been struck in this case especial- 
ly, as many times before in my life, at the wonderful 
intellectual superstructures which can be built on a 
few false assumptions, but they are at last houses built 
on the sand and cannot endure. But proceeding: If 
the coupon feature, once adopted, be in fact irrepeal- 
able, it is because it makes a contract that the Leg- 
islature was competent to make. If it does not make 
a contract becaiLse it is in form irrepealable and there- 
fore unconstitutional, it binds nobody, hurts nobody, 
and may be disregarded by any future Legislature 
when exigency demands it. It would stand upon the 
same footing as mere municipal law, which, though 
bad and unwise, is beyond the reach of the courts. 
For the current two years the tax is laid to meet 
both coupon and other expenses, the appropriation is 
made, and to this extent all agree the law might be 
constitutional. The presumption of sufficiency of rev- 



4 



DECEMBER TERM, 1881. 307 

Lynn «. Polk. 

enae is absolute, and the mode in which the appro- 
priation is made is matter of form and immaterial* 
If the Federal court should hereafter enforce the act 
when accepted, as making a contract, it will be beoauae 
it is a contract; they being the ultimate judges of 
that question, constituted such through our surrender 
of sovereignty to that extent. If it be not a con- 
tract because irrepealable * and unconstitutional, they will 
not enforce it. It is not legitimate argument to say 
that they will. The real ground of opposition to 
this law, as it seems to me, is not that it is against 
the Constitution of Tennessee as limited by the FeU- 
eral Constitution, but it is, in a recalcitrant temper 
and feeling, against that limitation itself. Can we 
now enjoin the execution of an act which may never 
become operative, as an unconstitutional law, and which, 
whenever it does, can be repealed by the Legislature 
at once upon a call of that body by the Governor? 
The law may be unwise, but is not for that reason 
unconstitutional. If it be unconstitutional upon future 
contingencies, there is no possibility of its becoming 
oppressive, us relief could always be had by legisla- 
tion, which must be sustained by the courts. It is 
upon the possibility of its becoming oppressive that the 
argument is made against its constitutionality. But it 
is neither unconstitutional in presenti nor in futnro be- 
cause of these possibilities. Its oppression under changed 
circumstances may be relieved against. The fear that 
this, which is called an unconstitutional act, may be 
enforced by the Federal courts as a constitutional law, 
is not, I repeat, a legitimate argument in favor of an 



308 NASHVILLE : 



Lynn v, Polk. 



injunction, because it supposes that the Federal courts^ 
will not do right. What then? If our Legislature 
had no Federal restriction, and the omnipotence of 
parliament, the law would be repealable and therefore 
valid. Does this legal restriction, then, determine the 
character of the law? The Federal restriction re- 
ducing our sovereignty may disable us from repealing 
acts, right (v wrong, and thei'efore may make it un- 
wise for us to pass laws of contract which we may 
not repeal; but does it affect the power? The legal 
restriction should be looked to in the exercise of the 
power, as in any event it attaches. Every law which 
makes a contract is, under ordinary circumstances, un- 
der our system, irrepealable. It is the making of a 
law which contains within itself the power of enforce- 
ment that is really objected to. Now, if such a law 
be unconstitutional, its enforcement will not be aided 
by the Federal courts. If it be not unconstitutional, 
then there can be no relief against it here. If relief 
against such a law were needed, now and before it is 
attempted to be enforced, and we should think it un- 
constitutional, it might be our duty, if we had juris- 
diction, to enjoin it now and never let the matter 
reach the Federal courts. But as already shown, and 
indeed not denied, relief is not now needed, and can- 
not be demanded, except upon remote and contingent 
ulterior considerations. But to come more closely up 
to the question of the unconstitutionality and t>rq>€a/- 
oMlity (barbarous word) of this act. If it is uncon- 
stitutional at all, it is upon speculative possibilities. 
If it were absolutely certain that the State would al- 



DECEMBER TERM, 1881. 309 

Lynn v. Polk. 

ways retain its present ability to meet interest and 
provide for ordinary government expenses^ there would 
be no ground for the charge that its sovereignty was 
infringed upon. Absolute sovereignty in a republic 
may consist with moral obligation and ability to per- 
form, and the chain imposed by such obligation is 
neither coercive nor derogatory to sovereignty. The 
wild privilege of ruining one's self and bringing ruin 
and disgrace upon all around one, is not such inde- 
pendence as may demand the support of courts or as 
should be sustained by civil guarantees. When the 
ability is lost, it may well be that the moral obliga- 
tion ceases or is suspended. The new circumstances 
may justify a repeal, and this repeal we must suppose 
would be sustained by the Federal courts as not im- 
pairing the obligation of contracts. In this view the 
coupon feature becomes merely a convenient mode of 
providing for payment of public debt. To borrow 
money for public purposes, all will agree, is within 
the competency of the General Assembly. Suppose the 
same law that authorizes the borrowing of the money 
provides also for its payment and mode of payment, 
by such a provision as that here, and that lenders 
part with their money under such a law, expressed 
on the face of the bond. To promise to pay inter- 
est on the loan indefinitely until the principal is paid, 
may certainly be done; to get five years or more of 
credit 6n the loan, and agree to pay interest in the 
meantime is competent. To provide that this interest 
shall come out of the taxes as a fund, these being the 
only means of payment the State has; to pledge the 



310 NASHVILLE : 



Lyan V. Polk. 



faith and honor of the State that this shall be so; — 
all of this is competent. But to undertake to make 
it certain that the interest shall be paid by making^ 
the law self-enforcing at the hazard that there may 
not be enough of the taxes to pay this interest^ and 
at the same time pay the expenses of the govern- 
ment, — there is the trouble. Public contracts, are not 
obligatory under all circumstances. See Hartman v. 
Oreenhow, 12 Otto, 672-681; Antoni v. Wright, 22 
Gratt. The organized civil republican government of 
Tennessee cannot be brought to a dead-lock or stand 
still in the enforcement of any contract, however it 
may be written or under whatever guarantee or sanc- 
tions it may be placed. Oportet vivere — it must live, 
and it has a first law of nature. But it cannot in- 
dulge in sham pretenses of starvation, and under these 
withhold its surplus. Public debentures look to the 
ordinary vicissitudes of the life of a State as the 
measure of their obligation. The extremes of famine, 
pestilence and war, volcanic eruptions and earthquakes,, 
taking away the means to pay taxes, would break 
the chains of contract and justify the refusal of a 
State to allow the last morsel necessary to its life to 
be snatched from it or its inhabitants. Extreme cases 
of this description would demand of every jurisdiction 
that there should be a suspension or denial of reme- 
dies provided for cases reasonably within human fore- 
sight. The pound of flesh never was and nfever can 
be demandable. To suppose that the Supreme Court 
of the United States would otherwise administer the 
law, is, in my opinion, a libel upon our highest ju- 



DECEMBER TERM, 1881. 311 

Ljnn V, Polk. 

dicial tribunal. But to make no obligatory contracts^ 
to get no good and beneficial compromises out of State 
creditors where the contract may run through years 
for convenience, and be secured by a heavy stress oc- 
casionally upon human labor and capital^ would, in 
my opinion, be to act upon a fine-spun philosophy of 
possibilities rather than upon the practical experience 
of every-day life. Such contracts may, at intervals, 
hai*ass and somewhat distress the obligors, but in the 
main may be salutary and beneficial. Such conse- 
quences are but the common evils of a large indebt- 
edness. If sucli contracts are made by competent au- 
thority at the time, they should be, and they will be, 
enforced, not as a shackle upon the proper free will 
of the State, but as a gentle but necessary curb to 
mere savage impatience of restraint. 

Shall we now in this case, before the contract is 
co|nplete, which may be beneficial to the State, out 
of which probably no inconvenience will ever arise^ 
and from which, if accepted and yet void, no obliga- 
tion can arise, — undertake to say that it shall not be 
operative? If the coupon feature be ultra vires, it is 
so only because it is a shackle. The moment in 
which it is to become a shackle, it drops off or breaks 
of itself, or is declared to be no shackle because in 
its terms obligatory. The plain result from this is,, 
that we cannot now declare that a limit and obstruc- 
tion te future legislation which loses that character 
the moment there is a necessity to overleap it; or, 
if it really puts bounds to legislation at all, it is be- 
cau<«e it is a contract which the Legislature was com- 



312 NASHVILLE: 



Lynn v. Polk. 



pet en t to make. It may be a mischievous law, but 
this is not to the purpose; it may be that policy 
would demand its being enjoined, but this could not 
be done by the court for want of power. Pushing 
this question, however, further, a new consideration 
arises, — who is to be the judge when the exigency has 
arisen that may justify the suspension or repeal of 
the law? If it be the exercise of a political right 
which rises superior to the right under a formal con- 
tract, the Legislature must be regarded as the final 
authority in the premises. How the Supreme Court 
of the United States would regard this under a case 
of the last necessity in behalf of the State, it is. I 
think, easy to say. That they would not regard a 
repeal under ordinary circumstances as a political act, 
is manifest from their decision in the case of Hart- 
man v. Greenhotv above referred to. That court would, 
in my opinion, hold the absolute necessities of the State 
as above tlie obligation of the contract. It is only 
to the.<e absolute necessities we need look, as these 
could form our only excuse for what would otherwise 
be a dereliction of duty. But the Supreme Court of 
the United States would, in any event, be the ulti- 
mate judge in a matter which we have surrendered to 
them in becoming members of the Federal Union. 
From time to time many things have been made re- 
ceivable for taxes besides gold and silver, bank notes, 
treasury notes, etc. ; this was, however, in most cases 
a mere privilege liable to be at any time withdrawn, 
or if to be considered a contract, for comparatively 
small amounts, or chargeable on special descriptions of 



DECEMBER TERM, 1881. 313 

Lynn v. Polk. 

revenue, and differing, as I apprehend, in principle 
from the present case. The magnitude of the issue of 
coupons, the contract appearing on their face, the time 
to which they are extended as a tender for all taxes 
and dues to the State, causes them to stand on a 
different ground from that of other tax receivables, 
but not on such a ground as that they can ever be- 
come an obstacle to the freedom of propei- legislation 
by the State. It is not every irrepealable law that 
is unconstitutional, it is only such laws as are an 
improper restraint upon future legislation. Grants and 
contracts pure and simple are certainly incapable of 
repeal and yet are constitutional. In the words im- 
propei* restraint lies the gist of this controversy. The 
right of repudiation of a just debt, if not a contradic- 
tion in terms, is a something which is not entitled to 
any guarantees. To give such a debt sanctions and 
guarantees of whatever nature is not an improper ex- 
ercise of power, provided they do not reach to the 
obstruction of the healthful exercise of other govern- 
mental functions. These coupons can never reach the 
point of such obstruction under a proper discharge of 
duty by subsequent Legislatures and a proper admin- 
istration of law, in other words, can never be an 
improper restraint. 

Something has been said upon the subject of ap- 
propriations as connected with the coupon feature. The 
provision of the Constitution quoted in this connection 
is as follows: "No money shall be drawn from the 
Treasury but in consequence of appropriations made by 



314 NASHVILLE: 



Lynn v. Polk. 



law; and an accurate statement of the receipts and 

• 

expenditures of the public money shall be attached ta 
and published with the laws at the rise of each stated 
session of the General Assembly." In view of this 
provision of the Constitution is money to be drawn 
from the Treasury under this act, and if so, is it 
without appropriation? If the mode of payment of 
the coupons is drawing money from the. Treasury, the 
appropriation for the two current years is already made. 
And so no tax-payer is yet hurt. The coupons come 
in, the statement of receipts and expenditures can be 
made, and all things will be right. The same thing 
may go on for the next two years and all will still 
be right. But a third term of the General Assembly 
comes on and the taxes are laid only to meet the 
government expenses, and the tax-collectors are forbid- 
den to receive coupons for taxes. Then for the first 
time comes up the practical question with which alone 
courts interfere. A bill quia timet is not needed, if 
the Legislature has the power to pass such a law. 
If it have not, it will be because the Legislature had 
the power in 1881 to thus anticipate appropriations by 
valid contract and no appropriation in form is neces- 
sary. There is no threatened damage to the tax-payer 
and no room or role for a bill quia timet. Yet under 
this hill we are called on to do the grave thing of 
holding an act of the Legislature void for this anti- 
cipative appropriation — one of the highest if not the 
very highest exercise of judicial power, without neces- 
sity. The bondholder cannot complain, as he takes 
the contract with the full knowledge of its infirmity. 



DECEMBER TERM, 1881. 315 

Lynn v. Polk. 

if ,any. He must take his chances of future Legisla- 
tures and of the Federal court. Again, a law thus 
anticipating the revenue in the future is valid prima 
facie, there being no limit in the Constitution on this 
subject. It is at the utmost only voidable or repeal- 
able at the will of the Legislature, to be exercised 
only when an exigency demands it, and snbpwjt to the 
check of Federal jurisdiction. But the money, in the 
case before the court, is not to be drawn from the 
Treasury. The act of 1873, in regard -to suing the 
State, distinguishes between the treasury, funds and 
property of the State. A direction that a particular 
individual shall be paid out of a fund before it reaches 
the Treasury, is not drawing money from the Treas- 
ury, though it is an appropriation. An appropriation,, 
then, for a longer term than two years is not forbid- 
den, even if appropriations to be drawn from the 
Treasury are. But there is no such limit as to time 
when the money is to be drawn from the Treasury. 
The limitation is, that if money is drawn from the 
Treasury it must be by appropriation. The constitu- 
tional limitation or inhibition is made to prevent the 
Treasurer from paying out money on unadjudged or 
uncertified claims, at his own will, or that of the Gov- 
ernor or other person. It has no reference whatever 
to such contracts as the Legislature may be competent 
and choose to make fixing time and place and mode 
of payment in money, in land, in debts due the State,. 
or other means whatever, including uncollected taxes r 
See Smith v. Speed, 50 Ala., 281-2 ; Story on Con- 
tracts, sec. 1348; Antoni v. WHght, 22 Gratt., 353. 



316 NASHVILLE: 



Lvnn V, Polk. 



The first' of these authorities says that this provision 
is in the Constitutions of most of the States, and was 
only intended to prevent such unauthorized payments 
as those above referred to, and cites Story on Con- 
tracts as above. The case in Grattan fully sustains 
the views above stated, in regard to appropriations. 

By an unwarranted assumption of analogy between 
the power of exemption denied to the legislative de- 
partment by the Constitution of 1870 and the present 
pledge of future reventies for coupons of interest, by 
recurrence to that Constitution, which denies also the 
privilege of creating private corporations — both of which 
powers existed under the Constitution of 1834 — an ar- 
gument somewhat plausible is advanced that the State 
of Tennessee, under its last Constitution, took a new 
departure upon the subject of State sovereignty. That 
whereas before the adoption of this last Constitution, 
the State influenced by the false doctrine of the great 
Dartmouth College case, and looking to it with rever- 
ence, had been pursuing in the main a sort of cen- 
tralizing policy and running in the grooves of a worn- 
out lego- political philosophy. This argument is attempted 
to be fortified by the fact that in the convention 
which adopted the Constitution of 1870 a proposition 
was introduced and nyected to make coupons of the 
public bonded debt receivable for taxes. The case of 
Moit V. Penn, R. R. Co., 30 Penn., 9, is introduced as 
authority to show that a State Legislature cannot j)er- 
manently alienate its right of taxation and thus put 
fetters on future Legislatures, and finally it is argued 
that the tendency of the courts in these later times 



DECEMBER TERM, 1881. 317 



Lynn v. Polk. 



is to get rid of the authority of the Dartmouth College 
case; that many regrets have been expressed that it 
was ever decided, and much doubt now hangs over its 
principles. These arguments have been elaborated and 
presented with much force and ingenuity, but they 
have failed to reach my convictions. That the con- 
vention -of 1870 might well refuse to put this coupon 
feature into the organic law and still leave such a 
power in the discretion of the Legislature, I can well 
understand. It is certain, too, that if the large ma- 
jority by which this proposition was rejected in the 
convention had thought it a power dangerous to be 
entrusted to the Legislature, they had only to speak 
and it would have been denied. What they did 
is only to be looked to, not what they omitted or 
failed to do. If there had been a proposition to grant 
this power to the Legislature and that had been re- 
fused, some deduction might have been drawn from it 
in favor of complainants'" position. 

The question here is not like that of a proposed 
exemption even of a partial character. We have an 
existing debt which every consideration of morality and 
our true interests should prompt us to bring to a 
speedy and favorable settlement with our creditors. 
The proposition involves at most a partial and proba- 
bly temporary anticipation of revenue, and no perma- 
nent shackle upon legislation. It brings about in a 
practical way a favorable abatement of interest upon 
a debt the payment of the principal of which is at 
our discretion in a short number of years. The only 
direct and analogous authority upon the subject sustains 



318 NASHVILLE : 



Lynn v, Polk. 



the exercise of power in the act of 1881 and by clear 
and cogent reasoning. This reasoning is sanctioned 
and approved by the highest court of the United States, 
and the vague fears expresed here of future danger 
are looked upon as illusory and visionary. Without 
being an ardent advocate or defender of the teachings 
and principles of the Dartmouth College case^ I may 
say that they have never been by the best courts dis- 
regarded nor their authority broken or abandoned. 
The case in Pennsylvania referred to has in effect as 
to the action of the court (directing a mandamus against 
the Governor) been overruled in that State hy the 
subsequent case of Hartran/t, Governor, e<c., 85 Penn., 
444-5, and as to the question of exemption, overborne 
by a number of existing and subsequent authorities in 
the Supreme Court of the United States. Among 
these are the cases of the Piqua Bank v. Knoof, 16 
How., 369 ; Mechanic's Bank v. Debolt, 18 How., 380, 
directly overruling an Ohio case upon appeal ; Dodge 
V. Woolsey, Id.. 331. 

The Ohio cases on this subject of exemption cited, 
though some of them are reasoned with ability, do not 
demand much consideration here, as some of them have 
been reversed and all others overruled by the compe- 
tent authority of the Supreme Court of the United 
States. 

At last it seems to me scarcely legitimate to argue 
against the constitutionality of a law upon the suppo- 
sition that future Legislatures will not discharge their 
duty, and this, in my view, is what the argument of 
complainants' counsel comes to in the end. If they, 



DECEMBER TERM, 1881. 319 

Lynn v. Polk. 

the General Assembly, do their duty in imposing the 
necessary tax to meet interest and also government 
expenses, in times when the coupon does not endanger 
the healthful action of the organs of the State; and 
if they do their duty when the life of the State is 
threatened, by legislative withdrawal of the privilege 
of presenting a coupon as a tax receivable, the imagi- 
nary fetter will never become a real one. The real 
danger is that the Supreme Court of the United States 
may not regard this last as a duty, but as an unau- 
thorized attempt to rid the State of a binding contract. 
If this result should arise, it will be because the Leg- 
islature of 1881 had the power to offer as well as to 
make such a contract^ and that being so, ends the ques- 
tion here. We may fret at this restraint, but when 
we reflect upon the unbounded blessings that flow to 
lis otherwise from this partial surrender of our sove- 
reignty, and that the apprehended danger is remote 
and really improbable, our minds should be quieted 
and we should rest in a dignified submission. 

This court is asked to seize upon the opportunity 
which it is said now occurs to forestall the anticipated 
difficulty. In my view of the act under discussion 
the court ought not to do so if it could, and in duty 
<$oald not if it would. 

Somethiug has been said in argument of the right 
of a State to scale its debts. With the assent of the 
creditors the debt as it now exists will be heavily 
scaled under the pending proposition, and if such a 
right really exists, when the proper time comes it may 
be scaled again with or without the creditor's' consent, 



320 NASHVILLE : 



Lynn v. Polk. 



but such a scaling must be done always subject to 
our relations as a member of the Union of Slates. 
But I have already said enough upon this question. 

There are some minor objections to the act of 1881 
stated in the bill to which I shall give a brief no- 
tice, that they may not seem to have been forgotten. 
It is said that the first section of the bill of rights, 
in which it is declared that the people have the right 
to alter, reform or abolish the government, etc., is 
violated. But as even the people have not the right 
to abolish the State, or to destroy or weaken its 
status in the Union of States, or to annul a just debt 
of the State, or to take away a provision for the 
payment of such debt legally made by an ordinary 
Legislature, it is somewhat difficult to see how this 
section is violated. 

Sec. 8 of Art. XI,, which provides against any law 
granting peculiar privileges to individuals. It is said 
that a preference is given by the act of 1881 to bond- 
holders over other creditors. No more, it seems to 
me, than paying one in full and not paying another, 
at the same time having the ability and the duty, and 
so far as appears the will to pay both and all. The 
construction contended for would cut the State Legis- 
lature off from all power to make favorable settle- 
ments and compromises with creditors who, foolishly 
or otherwise, might wish something more that the bare 
promise of the State. But this is merged in the 
larger question of the coupon feature, which has been 
already so extensively discussed. 

The 9 til sec. of the act (though in the form of 



DECEMBER TERM, 1881. 321 

Lvnn V. Polk. 

m 

the bond it is said " receivable for all dues and taxes ") 
would be controlled by the 3d section. The act is 
referred to in the bond. The coupon need not have 
these words of the form of the bond, but might have 
them with the exception of taxes for common schools. 

Sec. 12, Art. XI. of the Constitution, which pro- 
vides for the inviolability of the school fund, is said 
to \)e disregarded. But in view of the duty of the 
Legislature (with an unlimited power of taxation) to 
provide for this, which it is to be absolutely presumed 
they will discharge, I can see no violation qf this 
section in the act of 1881. A special tax might per- 
haps be laid for the schools and the fund so appro- 
priated that it could not be reached by the coupon. 
This, however, is immaterial. 

It is said, however, that this section, Art. 11., sec. 
12 of the Constitution is further violated by the act 
of 1881, as being in contravention of this clause of 
that section : ^^ The State taxes derived hereafter from 
polls shall be appropriated to educational purposes in 
such manner as the General Assembly shall from time 
to time direct by law." 

This poll tax is now appropriated by sec. 962 a of 
the Code to common schools, and as the law now 
stands could not be reached by the coupon feature of 
.the act of 1881, as the taxes for common schools are 
excepted by the 3d section of that net. Suppose a 
£uture Legislature should wish to take this fund away 
from the common schools (a very improbable supposi- 
tion), wouW the coupon -holder have the power, in 

case the poll t ix was applied to another educat'onal 
21— VOT.. 8. 



322 . NASHVILLE : 



Lynn v, Polk. 



purpose, to pounce upon and intercept it? By aacept- 
ance of the offer in the act of 1881, the coupon holder 
would preclude himself from presenting his claim to 
be accepted for any tax now devoted - to common schools. 
It would be nothing to him what the State might do 
with a fund to which he had relinquished all claim 
under his coupon-right. Suppose the act had said, 
except the poll tax and other taxes devoted to the 
support of common schools (and this in effect it does 
say), could he come afterwards and say, because the 
Legislature has taken the poll-tax away from common 
schools' and devoted it to some other educational pur- 
pose, he had a claim on it. Suppose the Legislature 
should take away from the common schools all taxes 
but those for their perpetual fund, certainly the coupon 
holder would have no right to say that anything was 
taken from his clutch to which he had a right, be- 
cause these taxes were devoted to another purpose. 

But at last suppose when the poll tax was thus 
taken away by the Legislature and applied to another 
educational purpose, the coupon holder should attempt 
to seize it. What would be the answer of the tax- 
collector? "You never had any claim to this by the 
terms of your bargain ; and more, if your bargain 
could by any strained construction be held to include 
this tax, plainly you are repelled by the constitutional 
provision as to its application." The cou^wn holder 
certainly could make no effective answer to this. Shall 
we then, as a court, when now and in all probability 
forever the coupon holder will not be fool-hardy enough 
to make such a claim, and if he should, would be 



DECEMBER TERM, 1881. 323 

Lynn ti. Polk. 

instantly repelled, upon an abstract notion that there is 
a conflict which may possibly be brought to issue some 
day between the 3d section of the act of 1881 and 
the clause in the Constitution above referred to, un- 
dertake to enjoin the execution of a great public 
measure which the Legislature had in other respects 
the power to adopt? 

It has been somewhat faintly argued that certain 
acts of Assembly of former dates have been, or pur- 
port in eflect to have been amended, modified or re- 
pealed by the present act, without the proper reference 
thereto, as required by the Constitution, either in the 
caption or the body of the act. In view of the va- 
rious decisions of this court upon this part of the 
Constitution, I feel clear to say that this is a mistake, 
and that the Constitution has not been violated in this 
respect. 

It is said that the funding board, without being a 
court but mere executive agents, have been given ju- 
dicial powers, thus intermingling the executive and 
judicial departments. Now the duties imposed upon 
the ^* funding board," though not merely ministeral, are 
strictly executive. Their action upon a bond as to 
its admission or rejection is not a judgment, is not 
final, and in no manner binds the bondholder as to 
the ultimate assertion of his rights in case his bond 
is rejected. Pro hac vice as to the issuing of a new 
bond for an old one, some judgment in exercised and 
niust necessarily be exercised by somebody who is to 
discharge the duty. Certainly it is not to be expected 
that every bondholder was to come into court to es- 



324 NASHVILLE: 



Lynn v, Polk. 



tablish his right to the issuance of a new bond. The 
analogies between this case and others where similar 
duties are required, are numerous, where no one ever 
suspected that judicial powers were intended to he 
communicated. The remarks of Judge Andrews, ia 
the case of the State v. Staten, 6 Cold., 257, are per- 
tinent in this connection. He says: "There is a large 
field of judicial inquiry in which action is had which 
is judicial in its nature but which is nevertheless 
not that exercise of judicial power, the exercise of 
which is restricted to the courts by the Constitution. 
Judges of election, assessors of revenue, commissioners 
for assessmet of damages on the taking of property 
under the right of eminet domain, clerks in taking 
the probate of deeds, and various other officers, exer- 
cise to a greater or less extent judicial functions, and 
by their decisions determine questions of fact and con- 
clude rights, though they are not courts." These 
remarks would seem to be conclusive on this matter,, 
that the Constitution is not violated in the duties im- 
posed on the "funding board." Besides, there is really 
now no dispute worth consideration as to what are the 
legally issued bonds of the State. 

The objection that the State did not make proper 
provision for the interest of the bonds and other de- 
mands upon the State, need not be further noticed 
than to say that it is, for the present at least, an 
absolute presumption that they did. 

The bonds for war interest are denied bv the bill 
to have been legally issued, but it scarcely seems that 
an issue as to these was to be raised and made mat- 



DECEMBER TERM, 1881. 325 

Lynn t;, Polk. 

ter of serious contest. However, it is well enough 
to say, as matter of history, that the State has long 
ago concluded herself on this subject by an issue of 
new bond^ which have gone out into the markets of 
the world and are in the hands of innocent holders. 
Nothing, however, is intended to be said as to the 
question whether, if taken in proper time and in the 
proper way, some defense might not have been made 
against the claim for war interest, especially where the 
debt was not held by an alien or an enemy. 

This disposes of all the minor objections to the 
bill. 

There remains, however, one consideration in view 
of this whole matter which has some force at least 
with me, and that is, that there is some prospect if 
this act is sustained it will tend much to the repose 
of society, and this has heretofore been made a ground 
of decision in less important cases. There are, it seems 
to me, no real evils in sight in allowing the act under 
discussion to be executed, and on the other hand much 
apparent good. 

In my opinion the bill should be dismissed. 



326 NASHVILLE 



Lynn v. Polk. 



Deaderick, C. J., said : 

The main questions arising in this ease have been 
so elaborately and exhaustively discussed in the four 
opinions already read, that I deem it unnecessary to 
repeat reasons already given, or cite authorities already 
referred to, to sustain the conclusions at which I have 
arrived upon the several questions involved. I content 
myself, therefore, with the simple announcement of the 
conclusions at which I have arrived, upon the several 
propositions contained in the bill, and discussed at the 
bar. 

First I am of opinion that the title of the act 
to compromise and settle the bonded indebtedness of 
the State of Tennessee, sufficiently expresses the subject 
thereof; that it contains but one subject; the several 
sections of the act being pertinent to the object ex- 
pressed in the title. And therefore it is not void as 
being repugnant to sec. 17 of art. 2 of the Constitu- 
tion of Tennessee. 

Second. I am further of opinion that the courts 
of this State have no power to review or reverse the 
legislative action of the General Assembly, except for 
the reason that suth action is violative of the Consti- 
tution ; and ithat such action, if within their constitu- 
tional power, cannot be questioned by the courts of 
the . State, upon allegations of fraud and bribery. 

Third. I am also of opinion that tax- paying citi- 
zens may file their bill to protect themselves from the 



DECEMBER TERM, 1881. 327 

^ ^ 1 T- n - I I ■ II I ■■II ■MB ^ I- r ■^^iB ■ I ■ w^^Mii _ I _i ^^^^^M^^t 

Lynn t;. Polk. 

iDJurious operation of a threatened and impending act^ 
which is alleged to be unconstitutional, although such 
act is about to be performed under the apparent au- 
thority of the State. The court may inquire if there 
exists legal authority for the act; if so, it will not 
impede or obstruct it. On the other hand, if it ap- 
pears it is prohibited by the fundamental law, it should 
restrain it — upon the ground that the injurious act 
about to be done is unauthorized by law. 

Fourth. I am, therefore, of opinion that the con- 
stitutionality of the act is fairly presented to this court 
for its decision ; and that the question for our de- 
termination is, had the Legislature the power to pass 
it? And in my opinion it had the power, there be- 
ing no inhibition or restraint in the Constitution to 
prevent it from doing so. 

I th»^refore concur with Judoje Evvins: in holdinor 
that the act is constitutional and valid, and that the 
chancellor's decree, dismissing tiie bill, should be af- 
firmed. 



328 NASHVILLE: 



Lynn v. Polk. 



Henry J. Lynk et aL i\ M. T. Polk et al. 

1. Order of Business. Power of court tt) regulate. In the absence of stat- 

utory restrictions, the Supreme Court has an inherent power to regu- 
late the order of business therein, and to advance causes of public 
interest on the docket. 

2. Act of 1871. Construdijon of. The act of 1871, ch. 125, is not an ena- 

bling, but a mandatory statute. While it requires the enumerated 
cases to be advanced, it does not affect the exercise of the inherent 
power of the court as to ca.ses other than those named. 



FROM DAVIDSON. 



Appeal from the Chancery Court at Nashville. A. 
G. Merritt, Ch. 

The defendants entered a motion to advance this 
cause for trial at the present term. It was argued' 
by Mr. George Gantt and Mi*. Albert S. Marks 
for the comphiinants, and Mr. R. McPhaii. Smith 
and Mr. Thomas H. Malone for the defendants. 

E. H. EwiNG, Special J., delivered the opinion of 
the court. 

The bill in this case was filed in the preset year 
in the chancery court at Nashville, by certain alleged 
citizens and tax-payers of the State of Tennessee, to 
enjoin the carrying out and enforcement of an act of 
the General Assembly of said State, passed at its ses- 
sion of 1881, entitled "An act to compromise and 



DECEMBER TERM, 1881. 329 



Lvnn V. Polk. 



settle the bonded indebtedness of the State of Ten- 
nessee/' This act provided for funding all the legally 
issued bonds of the State except certain designated 
bonds^ and all outstanding coupons thereon up to and 
including those falling due July 1, 1881. These bonds 
and coupons are to be funded into bonds of the State^ 
bearing interest at three per cent., with coupons re- 
ceivable for all taxes and dues to the State, except 
taxes for the support of the common schools and for 
payment of the interest on common school fund, the 
bonds to be styled the " Compromise Bonds of the 
State of Tennessee," and to have ninety-nine years to 
run, though redeemable at the pleasure of the State 
after five years; for the punctual payment of the 
principal and interest of said bonds, the faith, credit 
and honor of the State " are solemnly pledged." The 
Secretary of State, the Comptroller and the Treasurer 
are constituted a board, '* to be designated a funding 
board," for the carrying out of this act. The fund- 
ing board may sit when and where they may deem 
best to enable the holders of the outstanding bonds to 
fund the same. It is their duty to examine and 
audit such legally issued outstanding bonds of the State 
as may be presented to them for funding, and if found 
to be genuine to prepare the necessary compromise 
bonds, which, when signed by the Governor and the 
great seal of the State affixed thereto, and the original 
bonds registered in the Comptroller's office and a full 
memorandum of the same made by the Comptroller, 
and signed by the* party to receive the coupon bonds, 
are to be delivered . to such party upon his receipting 



330 NASHVILLE: 



Lynn v. Polk. 



therefor. Certain compensation also is allowed for their 
services, to the members of the funding board. 

By the general appropi iation bill of the same ses- 
sion of the General Assembly, $1,125,000, or so much 
thereof as miglit be necessary, was appropriated to 
meet the coupons upon the ^' compromise bonds," as 
they might fall due for the next succeeding two years. 
The revenue bill of the same session fixed the State 
tax /or the year 1881 and thereafter at 40 cents on 
the $100, of which 30 cents was to be for State and 
10 cents for school purposes. By existing law the 
county courts were authorized to levy an amouat an- 
nually by taxation for general purposes not to exceed 
the State tax, exclusive of the tax for public roads and 
schools. Under the revenue bill aforesaid a State tax 
of 40 cents on the hundred dollars has been collected, 
or is in process of collection, thirty cents on the dol- 
lar of which may, by the terms of the funding bill, 
be applied to the coupons of the compromise bonds. 
All of these facts appear by statements in the bill. 
The bill was filed before the funding board entered 
upon the discharge of their duties. 

The grounds for injunction stated in the bill are: 
That the ''funding act" was procured to be passed by 
bribery and corruption of certain members of the Gen- 
eral Assembly ; that the tax coupon feature forestalls 
the revenue and diverts it from current exigencies, 
narrowing the scope of subsequent legislation by an 
enactment in the form of a contract " binding the rev- 
enue and the political |)ower of the State over to the 
same and directing this revenue exclusively and prefer^ 



DECEMBER TERM, 1881. 331 



Lynn r. Polk. 



entially to the discharge of such contract/^ thereby de- 
nying to the State *^that benignant supervision that 
will both allow and prompt her to temper and adapt I 

her rule to the circumstances and vicissitudes which ' 

the coming years may bring " ; that this same feature 
violates sec. 24, art. 2 of the Constitution, that "no 
money shall be drawn from the treasury but in con- 
sequence of appropriations made by law " ; that the 
same feature violates sec. 12, art. 11 of the Constitu- 
tion, which provides that the interest on the common 
school fund "shall be inviolably appropriated to the 
support and encouragement of common schools"; that 
it breaks in upon the previous revenue system, adjusted 
to what has heretofore been receivable for revenue, 
thereby amending that system, yet without referring 
thereto and thereby violating sec. 17, art. 2 of the 
Constitution ; that the act amends the revenue act of 
1873, which prescribes what shall be receivable for 
taxes, by adding the compromise coupons to the list 
of tax- receivables, and yet does not recite in the cap- 
tion or otherwise, the title or substance of the law 
amended ; that the act violates sec. 2, art. 2 of the 
Constitution, forbidding any person belonging to one 
department of the government from exercising any 

r 

power belonging to either of the other departments; 
in this case the " funOing board," constituted of Sec- 
retary of State, Comptroller and Treasurer being given 
judicial powers, etc.; and that the Legislature (looking 
to the possible consumption of the revenue' actually 
provided, by the coupon), did not make adequate pro- 
vision for the ordinary expenses of the government. 



332 NASHVILLE: 



Lvnn tj. Polk. 



The bill in conclusion prays, in case complainants 
are " mistaken in regard to the power and functions 
of the funding board, and in their construction of the 
act in reference to the school fund, that the same may 
be construed by the court, etc." The persons desig- 
nated in the act by their official titles as a funding 
board were made defendants to the bill in their own 
names, thus : " M. T. Polk, J. N. Nolan and D. A. 
Nunn, hereinafter styled the funding board." The in- 
junction prayed for was granted, and thereupon the 
defendants, having been served with process and en- 
joined according to the prayer of the bill, appeared in 
the chancery court at Nashville and moved the court 
to dissolve the injunction for want of equity on the 
face of the bill. That court dissolved the injunction 
and in addition, of its own motion, also dismissed com- 
plainants' bill; from the decree thus made the com- 
plainants appealed to this court at its present term, 
and the cause is now here upon this appeal. 

But as it was manifest to the defendants from the 
state of the docket of Davidson county in this .court, 
and the previous order of the court, that the cause 
could not be reached at the present term of the court, 
the defendants have applied by petition to have this 
<^use so advanced as that it might be heard at the 
present term. The complainants resist the making of 
un order to advance the cause; they deny that it is 
rightfully in the power of the court to make such 
advance; and if within the power of the court, they 
deny that it is their duty or that it would be proper 
to do so. This court has heard argument upon these 



DECEMBER TERM, 1881. 333 

Lynn v. Polk. 

questions and proceeds now to give an opinion upon 
them. 

At the threshold this consideration occurs to the 
court. How is it that the complainants, as complain- 
ants, come to resist this application? They have not 
had justice dealt to them in the court below and have 
appealed to this court for redress. Such is their claim 
by their appeal. The presumption is that every man 
for an injury done him or threatened against him, de- 
sires to have justice administered to him without sale^ 
denial or delfey. Delay in affording relief for a griev- 
ance complained of, constitutes certainly no legitimate 
part of his redress. Delay is sometimes necessary even 
in a court of last resort, however, to the complete 
administration of justice, as, for instance, from the in- 
tervention of some fact between the decision of the 
lower court and the time for hearing in the superior 
one. This must appear by affidavit, and will of course 
receive attention by the court. Nothing of the kind 
is presented or pretended here. But this may be all 
true and yet the court may hear suggestions from any 
quarter in regard to its powers and the exercise of 
them, its duties and their obligation. The suggestions, 
therefore, of complainants' counsel upon these matters 
will be considered and dealt with by the court accord- 
ing to their merits. 

The only parties or persons who would seem to 
have a right to complain of an advancement of this 
cause are the other litigants upon the docket, the hear- 
ing of whose cases may be delayed by the interjection 
of this one. So far as we know, these litigants do 



334 -NASHVILLE: 



Lynn v. Polk, 



not object, nor do we know in what form indeed they 
could do so. This court will always however, it is 
hoped, when matters touching its powers and duties 
are properly brought to its attention, give them due 
consideration ; and we are of opinion that there has 
been no impropriety in the manner in which these 
questions are now presented. 

What, then, in absence of positive re^t^iction by 
statute, or a controlling course of decisions, would be 
the power of this court in regard to the order of 
business on its docket? The court would unquestion- 
ably have the power to try any cause brought here 
by appeal, at any time it should think proper, giving 
the parties due time for preparation, and there being 
no legal ground for postponement or continuance, ex- 
cept that the case was not regularly reached on the 
docket. This last would be no ground of objection 
so far as the parties were concerued, even if the court 
should act capriciously. The mere suggestion that 
something might * occur in the future that would be 
beneficial or disastrous to the one or the other by 
trying the cause out of its order, would demand no 
consideration from the court. This inherent power of 
the court should not, however, be exercised capriciously 
in reference to the rights of other litigants, if there 
were nothing in the cause proposed to be advanced 
to distinguish it in character from other cases. Such 
a course in a court would deserve public censure, how- 
ever valid its action might be in the cause thus ad- 
vanced or proposed to be advanced. The position 
here taken, we think, cannot be successfully assailed. 



DECEMBER TERM, 1881. 335 

- 

Lynn v. Polk. 

If, then, there has been no direct limitation of this 
power by statute and no controlling course of decision 
as a guide to the mode of its exercise, we shall only 
be left to say, in the case before us, whether it is of 
sufiBcient public importance to offer a valid reason to 
other suitors for a short delay in the hearing of their 
causes while this case is disposed of. Natural justice 
and the tendency of our legislation has been toward 
giving a litigant a right to have his cause heard in 
its order in the time of his appeal. But this is not 
a vested right. It has no mode of assertion and is 
subject to be postponed to more urgent considerations. 
No statute has so far affected the inherent power of 
the court above referred to, as to require that at all 
events causes shall be tried in their order on the 
docket. The court have examined the sections of the 
Code referred to in the argument as possibly having 
some bearing upon the immediate question now under 
examination, but none of them reach it and they do 
not demand discussion. None of them undertake to 
regulate the order in which causes shall be taken up, 
when the docket of any particular county is before the 
court. We cite them, however, that they may be 
looked into, if desired, by the curious or hypercritical : 
Code, sec. 4505, 4505 a; Sees. 2945 et seq,, as to the 
lower courts; Sec. 1504, authorizing this court to 
make rules, and the case upon it of Foster v. Bureiiiy 
1 Heis., 784. 

The cases presented from the decisions of thje Su- 
preme Court of the United States, pro and con, have 
been looked to, but nothing has been found in them 



336 NASHVILLE: 



Lvnn i'. Polk. 



bearing by way of restriction upon the inherent power 
above claimed for this court. 

So far as the decisions of the Supreme Court of 
this State in the time past are concerned, the old case 
of Chrisman v. Ourly 10 Yer., 488, has been referred 
to, ?,nd it would seem to favor the idea that the dis- 
position of causes in courts was at the discretion of 
the judges. The cases of Yvat v. Gaines and of Keith 
V. Ckirk (as stated by counsel, for no reference to them 
has been furnished to the court), seem to have been con- 
fined wholly to the construction of the act of 1871, 
ch. 125, and to have no bearing upon the question of 
the inherent power of the court now under considera- 
tion. No doubt seems to exist that this inherent 
power is possessed and exercised by the English Court 
of Chancery: See 2 Danl. Ch. PL, 972. 

Indeed it is difficult to conceive how in all the 
exigencies of society and government a court of last 
resort could answer fully the purpose of its creation 
without the possession of such an inherent and discre- 
tionary power. The very fact that statutes have been 
passed regulating in some particulars the order of bu- 
siness in courts, is an admission that otherwise this 
order would be Jft the legal not capricious discretion 
of the judges. 

In this connection it may not be improper to take 
some notice of the act of 1871, ch. 125. It has been 
slightly argued that this act, even admitting that the 
court . previously possessed an unlimited discretionary 
power as to the advancement of causes, defines the 
power to be thereafter possessed by the court and ex- 



DECEMBER TERM, 1881. 337 

Lvnn V. Polk. 

eludes all otner power upon the subject. Now it is 
manifest on the face of this act that it is only in- 
tended to make that a duty of the court which was 
before but a matter of discretion. It it not an ena- 
bling statute but a mandatory one; there are no words 
of limitation or restriction. The rule expressio \tniu8y 
exelvsio alterius has no application. 

If, then, this court has the inherent discretionary 
power, which from the above considerations it would 
seem that it has, the question still remains, Is this a 
proper case for its exercise? Is the cause of such 
public importance as to demand its speedy adjudica- 
tion? It is certainly a cause in which every citizen 
of Tennessee is more or less interested, pecuniarily, 
politically and as a matter of feeling. It brings into 
question the proper disposition of $1,125,000, raised 
and to be raised by taxation out of the people of the 
State. It brings into question whether this shall be 
applied to the payment of those who may be recog- 
nized as bond creditors of the State under the funding 
act, or held by the State for other purposes, or re- 
turned to the people. If not heard, it leaves at least 
one half of this large sum in the hands of public offi- 
cers for an indefinite period in the future and that 
without any adequate security. It leaves the creditors, 
of the State whom all acknowledge to be such without 
payment or settlement of their debts, or any definite 
prospect in the future of such payment or settlement. 
It leaves the credit and honor of the State at the 
mercy of its evil- speakers every- where. It lets loose 

again among the people the flood-gates of excitement 
22— VOL. 8. 



338 NASHVILLE: 



Lvnn V. Polk. 



and bitterness. It breeds despair among the lovers 
of peace and order and quiet and progress. Such are 
some of the consequences which would certainly follow 
upon a failure of the court to hear this cause at the 
present term. And what legitimate reason can be 
offered against its being heard? That probably a few 
eases between individuals may fail of being heard that 
would otherwise be reached but for the consumption 
of time by this case. These individuals do not com- 
plain^ and if they did their complaint could not be 
listened to, their rights must be held subordinate to 
this great demand of the public weal. 

But there is an argument offered against this ad- 
vancement which, from the pressing manner in which 
it is presented, perhaps deserves some consideiation. 
It is this: that should the case be advanced and the 
cause heard now, and as it possibly might be decided 
adversely to complainants the admission of bribery to 
the contrary notwithstanding, the people of the State 
would be cut off forever from an opportunity of re- 
pealing a law stained with corruption, and which for 
that reason whether a good or a bad law, should be 
repealed. Now it will be seen by the very statement 
of this objection that it is not an evil consequence that 
will inevitably or even probably follow the hearing of 
this cause at this term. It cannot be proven with 
anything like certainty that th6 law would be repealed. 
True, all opportunity of repeal would, in the case 
supposed, be lost. And we are asked, upon this sug- 
gestion of a bare opportunity for repeal of w^iat is 
now prima jack the law of the land, and against all 



DECEMBER TERM, 1881. 339 



Lynn v, Polk. 

the weighty reasons above-mentioned on the other side, 
to refuse to advance the hearing of this cause. And 
if we are to look at all at such future consequences 
of our action, we must also put into the scales this 
consideration : Is the law in itself a good or a bad 
one, without reference to' the mode of its passage, be- 
ing by its supposed affirmance a valid law of the land? 
To make this objection legitimate, speculative of future 
contingencies as it is, there should be at least a rea- 
sonable certainty that the delay in hearing would result 
in ultimate good to the State. 

In our mode, however, of looking at this case fu- 
ture contingent consequences cannot be considered as 
a reason for delay. We have here on the one side 
a law or that which is prima facie a law of the land, 
which has in it if sustained a certainty of settling a 
long pending subject of agitation in the State and among 
its people, and on the other a charge that the sup- 
posed law was obtained by bribery, and that for this 
aud other reasons it is not a law of the State. Now if 
in this state of the case the cause should be now heard 
and decided in favor of complainants, they will have 
obtained all that they can desire, the injunction will 
be sustained until their object, a new reference to the 
people, can be carried out. On the other hand, if 
now the case should be decided adversely to complain- 
ants the law will be affirmed, which is already prima 
facie a law of the land, and which by that decision 
will be declared to be and always to have been a 
valid law; as much so as any other law upon the 
statute book. It may be decided that the question 



340 NASHVILLE : 



Lvnn I'. Polk. 



of bribery cannot be looked to, and though it existed 
as a fact, is as if it had never been. If such should 
be the decision, this consequence would follow, that 
the injunction in this case never should have been 
granted against the consummation of that which is and 
always was a valid law of the land ; and it puts the 
complainants in the attitude of asking this court to 
keep up an injunction wrongfully obtained until they 
can accomplish some other ulterior object of doubtful 
propriety. 

The reasons, then, offered against the advancement 
of this cause, in view of what we believe the inherent 
power of this court and in view of the great public 
importance of the case, are deemed insufficient and 
unsatisfactory. 

But if the court should be mistaken in regard to 
the inherent power claimed for it, there is still another 
ground on which the motion to advance should be 
allowed. By the act of 1871, ch, 125, addenda to 
Code, sec. 2917c, it is provided ''that it shall be the 
duty of the several courts of this State to advance 
upon their dockets causes, the decision of which shall 
directly involve questions concerning the public rev- 
enues whether of the State, counties or incorporated 
tof^ns or cities, etc." Now is this a case the decis- 
ion of which directly involves questions concerning the 
public revenues of the State? If it be, it is made 
the imperative duty of this court to advance it. In 
considering this question we are to look at and con- 
strue together the " funding bill," the revenue act and 
the general appropriation bill of 1881, and also the 



DECEMBER TERM, 1881. 341 



Lynn v. Polk. 



existing revenue bill of the previous year. Taking 
these together, it is manifest that as to the result of 
the funding bill^ a large definite addition is made to 
the revenue to be raised in the then next sucoeeding 
two years, and that this is the basis of an appropri- 
ation of $1,125,000 in the appropriation bill for the 
payment of interest on the public debt. Whatever 
might De the decision in this case, it is clear that 
under the revenue bill the whole of the tax .laid must 
be collected. If the decision should be adverse to the 
iiinding bill, the appropriation would be void and the 
bond creditors have no claim upon the fund. But 
that portion of the fund thus raised which would not 
be necessary for the payment of the current expenses 
of the government, having been raised for a void pur- 
pose, would remain in the treasury as part of the 
general assets of the State, or as a fund improperly 
raised and to be returned to those from whom it was 
collected. And though in the decision of this case 
the question as to what should be done with the fund 
thus remaining in the treasury does not and cannot 
arise, nor is any opinion intended to be expressed upon 
that subject, yet the State is directly interested in the 
question here, which by its decision may leave this 

unappropriated and undisposed of revenue in its hands, 

• 

and which may or may not form a part of the gen- 
eral funds in its treasury. If this be so, the statute 
of 1871 directly applies, and our duty arises under it 
to advance the case. But if it be not so, we do 
not recognize the doctrine to the extent claimed that 
the revenue questions arise only in regard to the in- 



342 NASHVILLE: 



Lvnn V. Polk. 



coming of revenue and not as to the manner in which 
it is expended or to be expended. The cases of Yost 
V. Gaines and Keith v. Clark, so far as the recoUectioo 
of the court goes,, were cases in which no written 
opinions were given, they are not known to be re- 
ported. Nothing in regard to them has been furnished 
the court except the statements of counsel for com- 
plainants in argument. As recollected, they were cases 
of simple demands against the treasury, claiming their 
payment and setting up no claim to a fund that had 
ear- marks of revenue upon it — demands that could in 
no event occasion their consideration in the imposition 
of future taxes upon the people of the State. . What- 
ever remarks may have been made by the court in 
those cases either verbally or in writing, upon the 
distinction between the incoming of revenue collectable, 
and the outgoing of money from the treasury as ap- 
plied to the act of 1871, must be held to have ap- 
plied only to the cases then before it and do not apply 
here. Here, by reference to the several acts above 
(to be construed together), we see a nexus between the 
incoming and outgoing of revenue of vast amount, with 
objects of raising clearly indicated, with appropriations 
specifically made, and claims to be. definitely ascer- 
tained. To say then, these things considered, that the 
decision of this case does not directly involve questions 
concerning the public revenues would, it seems to us, 
be an unworthy attempt to evade our manifest duty. 
Certainly the decision of this case does directly concern 
the public revenues. 

But beyond all this, what seems a conclusive view 



DECEMBER TERM, 1881. 343 

Lvnn r. Polk. 

in regard to our duty under the act of 1871, is that 
by our decision we may declare that the St:ite is bound 
as by contract under the " funding bill," and that it 
will 'be the duty of the State in the future to impose 
yearly taxes to meet the accruing interest upon what 
will have been recognized as the bonded debt of the 
State. How, then, can it be said that the decision 
of this case does not involve questions concerning the 
public revenues of the State, leaving out of view all 
other considerations above set forth on this subject. 

We deem it unnecessary to consider the questions 
argued at the bar as to whether the " funding board ^^ 
as such, or the individuals composing it, are public 
officers, and whether the exercise of their lawful func- 
tions is involved in the decision of this case. 

Upon the whole matter, then, we are of opinion 
that the cause should be advanced upi>n the docket of 
Davidson county and heard at the present term. 

The court all concur in the conclusion arrived at 
in this opinion that the cause should be advanced; 
but there is some difference of opinion as to some of 
the reasoning and reasons for the conchision. 



344 NASHVILLE : 



Harwell v. Benson. 



Wm. G. Harwell et aL v, Mollie H. Benson ei aL 

WiLi*«?. Cfnuifnicfion of. A devise of land in fee, with remainder over to 
take eflect in the event the first taker *' shonld die before he marrv or 
have any bodily heirs," means that the devise over shall take effect 
even though the first taker marry, if he die before he have any bodily 
heirs. 



FROM LINCOLN. 



Appeal from the Chancery Court at Fayetteville. 
John W. Burton, Ch. 

N. & F. Smithson for complainants. 

HoLMAN & HoLMAN for defendants. 

McFarland, J., delivered the opinion of the court 

C. D. Benson, of Lincoln county, died in 1867, 
leaving a will, by which he gave his estate to his 
widow and three children in the follow^ing manner, 
to-wit: "Item 2d. After all my just' debts are paid 
and discharged, the residue of ray estate, real and per- 
sonal, I dispose of as follows: To my wife Narcissa 
E., one third of my real estate and one fourth of all 
my personal property during her natural life, and after 
her death to be equally divided between my legal 
heirs; to my son, Thomas E. Benson, one third of 
the residue of mv real estate and one fourth of all 

r 

my personal property ; the remainder of my real estate 
and personal property to be equally divided between 



DECEMBER TERM, 1881. 345 



Harwell v, BeDHon. 



my daaghters, Elvira Frances and Elenor Obedience 
Benson^ to be set aside for their sole and separate 
use, free from the Control and liabilities of their hus- 
bands' debts during their natural lives, and after their 
deaths to their bodily heirs." 

'^ Item 3d. I will and bequeath to my legal heirs, 
after the death of my wife Narcissa E., all the real 
and personal estate that I have given to her during 
her natural life, to be equally divided between my 
legal heirs, share and share alike, and to descend to 
them in the same manner I have prescribed in item 
second." 

" Item 4th. I direct and will that if any of my 
children should die before they marry or have any 
bodily heirs, that his, her or their shares be equally 
divided between my legal heirs, as specified in items 
second and third." 

The 5th item gives directions as to the manner of 
dividing the estate. 

The lands were divided in the manner pointed out 
by the will. Lot No. 1 being assigned to the widow, 
Narcissa E ; Lot No. 2 to ' Thomas E. ; Lot No. 3 
to Elenor O., and Lot No. 4 to Elvira F. Thomas 
E. Benson married, and died in August, 1876, without 
«ver having had any child born to him. Previous to 
his death he conveyed the land allotted to him (Lot 
No. 2) to the widow Narcissa E., and she soon after 
conveyed the same to MoUie H. Benson, the wife of 
said Thomas E. Soon after, the said Narcissa E., 
Thomas E. and Mollie H. conveyed the land to James 
Watson, to secure to Henry Watson a loan of |f 1,200. 



346 NASHVILLE 



Harwell v. Benson. 



Elvira F. married James Allen and died leaving 
two infant children surviving her, who successively 
died in infancy, the last in August, 1873, leaving the 
father, James Allen, surviving. 

Elenor B. married W. G. Harwell, and they and 
their two infant children are the complainants in this 
case. The defendants are the widow Narcissa E., 
Mollie H. Benson the widow of Thomas E., James 
Allen, and James and Henry Watson. 

The object of the bill is to construe the will, es- 
pecially in reference to its effect in the contingencies 
that have happened, as to the title to Lot No. 2 of 
the land, and also to declare who will take the re- 
mainder interest in Lot No. 1 after the death of the 
widow. 

The principal controversy is upon the construction 
of item 4. Thomas E. having died after marriage, 
but before the birth of a child, the question is whether 
the devise over in favor of the testator's legal heirs 
took effect. The language of item 2, taken alone, is 
sufficient to vest Thomas E. with the fee ; but con- 
strued with item 4, it becomes a fee subject to be 
defeated by an executory devise over in favor of the 
testator's heirs upon the happening of the contingency. 
The question is upon what contingency is the devise 
over to take effect ? The language is, " if any of my 
children should die before they marry or have any 
bodily heirs." Does this mean that in order for the 
devise over to take effect, the first taker should not 
only die before he have any bodily heir, but also be- 
fore he marry? Or, on the other hand, does it mean 



DECEMBER TERM, 1881. 347 

Harwell v. Benson. 

that the devise over shall take effect if the first taker 
die before he marry, or if after he marry he die be- 
fore the birth of a child? 

In Massie v. Jordorij 1 Lea, 648, the language was : 
"If either of ray children die before arriving at the 
age of twenty- one years or (before they) have a lawful 
heir of their body," my wish is that the survivors 
shall be heirs, etc. It was held that the death must 
occur before arriving at twenty-.one years of age and 
before the birth of a child. This is well sustained 
by the authorities: See 2 Jarman on Wills, 5th Am. 
ed., p. 86. The intention of the testator in such a 
case is clear, that the first taker's estate shall be ab- 
solute if he arrive at an age to dispose of the prop- 
erty himself, or if he die before that age he nev*»r- 
tfaeless have issue born. 

It would seem at first view that the present case 
is analogous in principle, but it will be seen from the 
volume of Jarman above referred to, page 96, that 
language similar to the clause now under consideration 
is construed differently. That is to say, a devise over 
upon the first taker " dying before he arrive at twenty- 
one years of age or have bodily heirs,'' is not to be 
construed in the same way as a devise over upon the 
first taker dying " before he marry [or have bodily 
heirs." The question is, the intention of the testator, 
and as said Judge Cooper in Maaaie v. Jordan, it is 
common learning on the construction of wills, that "or" 
may be changed into "and" to carry out the testator's 
wishes, and it may be added, that for the same pur- 
pose "and" may be as readily changed into "or,^' but 



348 NASHVILLE : 



Harwell i\ Beuson. 



of course no change of words will be made if the 
intention can be arrived at without the change. We 
are constrained to hold that the intention in this case 
was that the devise over should take effect if either 
of the testator's children should die either before mar- 
riage, or if after marriage before they had any bodily 
heir or child born. To hold that the estate of the 
first taker was to become absolute upon his marrying, 
would be • to give no meaning to the words " or have 
any bodily heir." In that view, it would have been 
sufficient to say, "if any of my children should die 
before they marry," then their share to go to the 
survivors, etc. This is so for the reason that he must 
marry before he have bodily heirs — as bodily heirs 
means lawful issue, or issue born in wedlock. 

It is equally true that the intention we have in- 
dicated as the true one, could have been as well ex- 
pressed without any reference to " marrying," as if the 
will had said, "if any of my children should die be- 
fore they have any bodily heirs " ; for, as we have 
said, they could not have lawful " bodily heirs " until 
after they marry. To "have bodily heirs," and "marry 
and have bodily heirs," is in effect the same as the 
former including the latter. The intention was that 
the estate of the first taker should become absolute if 
"he marry and have a bodily heir born to him," or 
if he "have a bodily heir," which means the same 
thing; or in other words, the devise over was to take 
effect if the first taker die either before he marry, or 
if after he marry he die before he have a bodily heir. 
This intention is also strengthened by other portions 



DECEMBER TERM, 1881. 34» 

Harwell v. Benson. 

of the will; in fact the shares of the two daughtera 
is limited in term to their lives. The devise over, 
therefore, took effect in favor of his testator's legal 
heirs, that is to say in favor of his heirs at the hap- 
pening of the contingency. 

The complainant, Mrs. Harwell, being at that time 
the only heir of the testator, must take the estate; 
but the 4th item, by reference to the 2d and 3d items, 
limits the estate to her life with remainder to her 
children. 

James Allen, although the heir of his deceased child 
and as such entitled to the share if his deceased wife, 
is not an heir of the testator, and therefore takes no 
interest in Lot No. 2. We feel constrained to give 
this construction to the will, notwithstanding the sym- 
pathy courts would naturally have for the widow of 
Thomas E., and notwithstanding the hardships upon 
the creditors. 

As the life estate of the widow in Lot No. 1 has 
not yet fallen in, it is not proper to express an opin- 
ion as to who will be entitled to the remainder. The 
construction contended for the complainants is, that it 
will go to the class of persons constituting the heirs 
of the estate when the life estate terminates — unmind- 
ful that by such a construction the complainants them- 
selves have now no interest, as it cannot be known 
that they will be the heirs of the testator at that 
time. 

The decree as to Lot No. 2 must be reversed and 
a decree entered for complainants, but under the cir- 
cumstances they will pay the costs. 



350 



NASHVILLE 



Lightfoot V. BaSvS. 



8L360 
101608 
14L605 



Elizabeth H. Lightfoot v. John M. Ba8s et aL 



Married Woman. iSf^parate estate. Povxr of dwptmitwti. The giving of a 
iK)wer of disposition to a married woman to diBpoRe of her separate 
estate in a particular mode or for a particular purpose, is not an 
(uy/Y*< withholding of all other powers of disposition, in the meaning 
of the statute of lS()l)-70. 



FROM DAVIDSON. 

Appeal from the Chancery Court at Nashville. W, 
F. Cooper, Ch. 

E. H. East and W. G. Brien for complainant. 

Thruston & Bradford for defendants. 



McFarland, J., delivered the opinion of the court. 

The question in this case is the power of Elizabeth 
H. Lightfoot, a married woman, to mortgage her sep- 
arate real estate to secure a present loan of money to 
her husband. The deed conveying the property to 
Mrs. Lightfoot, contains the following clause : '* For 
the separate use and benefit of Elizabeth H. Lightfoot, 
and not to he liable for the debts of her husband, 
and with full power to dispose of it in her life-time 
by sale or by last will and testament." The question 
depends upon a construction of the act of 1869-70, 
Thompson & Steger^s Code, sec. 2486 a. 6. c. 



DECEMBER TERM, 1881. 351 

Lightfoot V. Basa. 

Previous to the passage of said act, the course of 
decision in this State was, that if upon a fair con- 
struction of the instrument creating, the intention of 
the graator appears to have been either that the feme 
could not convev at all, or that she should only con- 
vey in a particular mode or for a particular purpose, 
then shq could only convey in the mode or for the 
purpose specified, and not otherwise : Morgan v. Elara^ 
4 Yer., 374 ; Ware v. Sharp, 1 Swan, 489 ; Campbell 
V. Fields, 1 Cold., 416; Starnes v. Alli^oriy 2 Head, 221; 
and see also a review of all the authority in Young 
v. Young, 7 Cold., 461. 

The question whether a feme might convey where 
the deed of settlement was entirely silent as to the 
power of disposition, was for the first time decided in 
Young v. Young, 7 Cold., 461, where it was hek^ that 
in such case the deed of the husband and wife in the 
ordinary form would pass ihe estate. A contrary 
decision subsequently made in the case of Gray v. Robb, 
4 Heiskell, has since been overruled by this court. 
So that previous to, or without the act in question, 
the law stood thus: If the deed or ^vill making the 
settlement contained a general power of disposition, of 
course the power to convey was unlimited wiihoui the 
statute. If it was entirely silent as to the power of 
disposition, then the power to convey by the joint 
deed of husband and wife was unlimited. If all power 
of disposition was expressly withheld, then of course 
there could be no power to convey. If the power 
to convey in a particular mode or for a particular 
purpose be in terms given, then a conveyance might 



352 NASHVILLE : 



Tiightfoot r. BasR. 



be made in the mode or for the purpose specified, but 
not otherwise. 

Let us then see in what respect the law was changed 
by the action in question. It is as follows: 

"Sec. 1. Married women over the age of twenty- 
one years, owning the fee or other legal title or equi- 
table interest or estate in real estate, shall have the 
same power of disposition by will, deed or otherwise, 
as are possessed by /ernes Mole or unmarried women." 

" Sec. 2. The power of married women to sell, 
convey, charge or mortgage their rral estate, shall not 
depend upon the concurrence of the husband, provided 
her privy examination to any deed, mortgage or other 
conveyance shall take place before a chancellor or cir- 
cuit judge of this State or clerk of the county court." 

"Sec. 3. Femes covert or married women owning a 
separate estate settled upon them for their separate use, 
shall have and possess the same power of disposition 
by deed, will or otherwise, as are given in the first 
and second sections of this act ; Provided the power 
of disposition is not expressly withheld in the deed or 
will under which they hold the property." 

Thus it is seen that the 3d section confers upon 
married women owning separate (states, the same pow- 
ers of disposition given in the 1st and 2d sections in 
reference to other estates ; provided the power of dis- 
position be not expressly withheld in the deed or will 
under which they hold. The powers given in the 
Ist and 2d sections are the same powers of disposition 
possessed by femes sole, provided privy examination be 
had in a particular mode. 



DECEMBER TERM, 1881. 353 

Lightfoot V, Ba88. 

In those cases where the deed or will creating the 
settlement contains a general power of disposition, this 
statute was of course not necessary to give the power; 
the act, however, in reference to such cases would be 
efiectual to dispense with the necessity of the husband 
joining in the conveyance, which might otherwise in 
some cases be necessary. And so, in cases where 
special pf^wers of disposition are in terras given, the 
statute was unnecessary for the purpose of giving the 
powers in terras conferred. 

The act, however, removed all doubt that might 
have existed in regard to those cases where the deed 
or will under which the estate was held was entirely 
silent as to the power of disposition, and* we have 
seen the authorities were at one time conflicting on 
this point. By the terms. of the act it does not apply 
to cases where the power is expressly withheld in the 
deed or will under which the estate is held. The 
question is, what is necessary to constitute an express 
withholding of the power of disposition. Of course 
where in terms all power of disposition is expressly 
withheld there can be no difficulty, or where a power 
of disposition in a particular mode or for a particular 
purpose is given, and it is in temiis txpressed that the 
poict)' 'of disposition shall not exist in any other mode or 
for any other purpose^ then it would be clear that all 
powers of disposition except those given are expressly 
withheld, and hence sueh powers would not be con- 
ferred by the statute. 

But how is it where the power of disposition in a 

particular mode or for a particular purpose is given, 
23— VOT.. 8. 



354 NASHVILLE: 



Lightfoot V. Bass. 



and nothing said as to whether any other power ' of 
disposition shall exist; shall such grant of special pow- 
ers be construed as expressly withholding all other 
powers of disposition, in the sense of the statute? 

The statute declares that the power to convey shall 
exist unless it be expressly withheld ; that is to say, 
the intention to withhold the power must be expressed^ 
and not left to inference or intendment. In one sense, 
it is true, any intention to be gathered from an entire 
instrument may be said to be expressed in the instru- 
ment; yet there are certain rules of construction and 
presumption upon which an intention is sometimes ar- 
rived at upon the construction of a writing which is 
not in terms or in language expressed, as for instance, 
that the expression of one thing is the exclusion of 
another. The expression of the intention that the 
grantee shall have the power to convey in one mode, 
excludes the idea the power shall exist in any other 
mode ; but do we arrive at the conclusion that the 

m 

purpose was to exclude all powers of disposition except 
those expressly granted, because sucq purpose is expressed 
in- the sense of this statute, or is inferred or presumed 
upon the rule of construction indicated, that the ex- 
pression of one thing is the exclusion of another? 
Does the statute mean that all the powers of disposi- 
tion mentioned by its terms shall be conferred, unless 
these powers are specially or in general terms withheld 
by the express language of the instrument, or does it 
mean that the giving of the power of disposition in a 
particular mode shall be construed as expressly with- 
holding all others? 



DECEMBER TERM, 1881. 355 



Lightfoot r. Bass. 



We have held in effect that the general language 
of a deed declaring that the estate shall be for the 
sole and separate use of the /erne, and not subject to 
the debts of her husband, is not equivalent to ex- 
pressly withholding from her the power to mortgage 
for the debt of her husband : Mallory v. Clapp, 2 Lea, 
686. The power to thus convey must be expressly 
withheld, or it is conferred by the statute. In that 
case, the feme covert was held to have the power to 
mortgage her separate estate for her husband's debt— 
the deed under which she held neither giving or in 
terms withholding the power of disposition. In this 
case the deed under which the complainant claims gives 
her " full power to dispose of the property in her life- 
time by sale or by last will and testament." Shall 
we hold that the power in the present case is less 
than in the former case? Ih short, shall we hold 
that the power which has been exercised in this case 
is expressly withheld in the deed under which Mrs. 
Lightfoot holds the property? We are constrained to 
hold that it is not. The intention that such a power 
should not be exercised mav be inferred from the 
general purpose of the settlement, but the power is not 
expressly — that is in direct terms — withheld, and hence 
the statute confers the power. 

While in one sense every intention to be gathered 
from an instrument may be said to be expressed, yet 
the use of the word in this statute seems to mean 
that the power must be withheld in express terms. 
Such is the construction we think, after mature con- 
sideration, should be given to this statute, although we 



356 NASHVILLE : 



111 6001 
181 44 
19L 60 



Rea V. The State. 



have not been without doubt in regard to it. An 
additional and perhaps a controlling reason for this 
view is, that it furnishes a more uniform and practi- 
cal rule and one more easily understood and followed. 
By the contrary rule, each . deed, will or other muni- 
ment conveying separate property, containing special 
powers of disposition, would have to be construed with 
reference to its particular language, to determine whether 
all other powers were intended to be withheld, while 
the construction we have given furnishes a rule less 
liable to uncertainty. 

This renders it unnecessary to consider the ques- 
tion whether the power of sale in the deed includes 
the power to mortgage to secure a loan to the husband. 

The decree must, therefore, be reversed and the 
bill dismissed. 



W. W. Rea v. The State. 

1. CRiMiNAii Law. Charge of court. Special instriu^lions. The defendant 

in a criminal prosecution is only entitled to have the law applicable 
to his case fully and fairly stated in a judicial form, and cannot of 
right demand special instructions, otherwise worded, upon points al- 
ready thus stated. 

2. Same. Same, Same. Where, therefore, the court has properly charged 

the law in a case of circumstantial evidence, the defendant is not en- 
titled to special instructious to the same effect, laying stress now upon 



DECEMBER TERM, 1881. 357 

Bea V, The State. 

I 

the evidence necessary to establish the hypothesis of guilt, now upon 
the certainty required to exclude every other hypothesis, and now 
upon the duty of the jury in weighing the evidence. 

3. Same. Same, Circumstantial evidence. It is not error, after a proper 

charge in other respects correct, in a case of circumstantial evidence, 
to refuse to charge that the jury should not convict on circumstantial 
evidence unless it was as fully satisfactory to their minds as would 
be the positive swearing of one credible witness that he saw the act. 

4. Same. Evidence, Record, An objection to a record offered in evidence 

should specify the ground of objection. 

5. Same. Same. Same. Upon a trial for murder, where malice on the 

part of the defendant to the deceased must be shown, evidence is rel- 
evant that there had been a criminal trial in which the defendant 
was the principal witness for the State, and had been discredited by 
the deceased, whereby the prosecution failed, and the defendant was 
greatly enraged against the deceased, and the record of the case is the 
best evidence as far as it goes. Testimony of a mistrial in that caae 
would not contradict the record showing a judgment of not. pros. 

6. Same. Same, Memoranda of judge^s docket. The memoranda of a 

judge on his trial docket are not a part of the record, nor competent 
evidence, but where the only object of its introduction was to show 
a mistrial in a particular case otherwise abundantly proved without 
objection, its admission would be no ground of reversal. 

7. Same. Satne. Where, upon a trial of murder, the State, to show mal- 

ice, has proved repeated threats made by the defendant against the 
deceased, it is not error to exclude, upon objection by the State, evi- 
dence tendered by the defendant that the witness had heard him say 
that he had no enmity against the deceased, wished to be friendly, 
and had sent him word to that effect. 

8. Same. Same. Oircumstantial. The circumstances, in a case of purely 

circumstantial evidence, held sufficient to sustain a verdict of mur- 
der in the first degree. 



FROM GILES. 



Appeal in error from the Circuit Court of Giles 
county. W. 8. McLemore, J. 

8. E. Rose and T. M. Jones for Rea. 



358 NASHVILLE: 



Rea i\ The State. 



N. Smithson, E. T. Taliaferro and Attorxey- 
General, Lea for the State. 

Cooper, J., delivered the opinion of the court. 

The prisoner has appealed in error from the ver- 
dict of a jury, and the judgment of the trial court 
thereon, convicting him of murder in the first degree. 

The evidence was circumstantial, and the trial judge, 
after properly defining the various grades of homicide 
included in the indictment, and explaining to the jury 
what it w^as necessary for the State to prove in order 
to make out either offense to their satisfaction " beyond 
a reasonable doubt," continued his charge thus: "A 
reasonable doubt is difficult to define with any precis- 
ion. Of course it is not every possible doubt, but it 
is that doubt engendered by an investigation of the 
whole proof, and an inability after such investigation 
to let the mind rest easily upon the certainty of guilt 
or innocence. In other words, it is an honest mis- 
giving as to the guilt of the accused upon the proof, 
which the reason entertains and sanctions as a substan- 
tial doubt." Then, after stating the different positions 
of the State and the defendant in reference to the 
effect or result of the proof, his Honor said : " In 
order to convict a person of crime on circumstantial 
evidence, the circumstances must not only be consistent 
with the guilt of the accused, but must exclude every 
reasonable hypothesis but that of his guilt. In other 
words, the proof must exclude the idea that the de- 
ceased might have come to his death in a manner 
inconsistent with the guilt of the deceased. Or, at 



DECEMBER TERM, 1881. 369 

Rea vr The State. 

least, tlie circumstances must be sufficient to convince 
the mind and conscience of the jury of the guilt of 
the accused beyond a reasonable doubt." 

His Honor further said ; " The defendant's counsel 
rely upon an alibi, that is that, at the time of the 
killing, the prisoner was in fact elsewhere, in some 
other place, that he was in his o>vn house. The de- 
fense of an alibi is very conclusive, if clearly, fully 
and certainly established. It is a defense, however, 
60 liable to abuse when a design exists to practice a 
fraud upon the State, and even when that design does 
not exist, by ignorant mistakes as to the particular 
hour and lapse of time, that it requires great strict- 
ness and caution on the part of the jury to avoid 
being misled by it. The defendant is not required to 
prove an alibi beyond a reasonable doubt, but you 
will take the proof touching the alibi in connection 
with all the other proof in the cause, and if it pro- 
duce in your mind a reasonable doubt as to the pris- 
oner's guilt, your duty is to acquit him." 

The defendant's counsel asked the judge to charge 
the following five propositions, which he declined to 
do upon the ground that he had already charged upon 
the subject mutter of all of them, viz: 

" 1st. This being a c \se of circumstantial evidence, 
the circumstances should be of a conclusive nature and 
tendency. Such evidence is always insufficient, when 
assuming all to be proved which the evidence tends 
to prove, some other hypothesis may still be true. 
For it is the actual exclusion of every other hypothe- 
sis which invests mere circumstances with the force of 



360 NASHVILLE: 



Rea v. The State. 



proof. Whenever, therefore, the evidence leaves it in- 
different which of several hypotheses is true, or merely 
establishes some indefinite probability in favor of one hy- 
pothesis rather than another, such evidence cannot amount 
to proof, however great the probability may be, to 
convict the defendant. 

2d. It is essential that the circumstances should be 
a moral certainty, excluding all hypotheses but the one 
proposed to be proved, to-wit, the guilt of the de- 
fendant. For, in the language of the law, it is better 
that ninety-nine guilty men out of a hundred should 
escape than that one innocent man should be convicted. 

3d. That it is the duty of the jury to enquire 
with the most scrupulous attention what other hypoth- 
e.*is there may be, which may agree wholly or in part 
with faits in evidence. And if any other hypothesis 
agrees with the evidence, the jury should acquit the 
defendant. 

4th. In criminal cases, the statement made by the 
accused is in this point of view, of the most essential 
importance, and should be carefully considered by the 
jury. 

5th. The jury ought not only to acquit the accused 
unless the evidence excludes from their minds all rea- 
sonable doubts, as explained to you, of his guilt, but 
in no case ought the jury to convict a man of a crime, 
when his life is at stake, where the circumstantial evi- 
dence does not satisfy their minds as fully as they 
would be satisfied from the positive swearing of one 
credible witness that he saw the defendant fire the gun 
which took the life of the deceased." 



DECEMBER TEEM, 1881. 361 

Rea V. The State. 

These propositions, it will be noticed, are not 
tjharges upon the particular facts of the case before 
the court, but merely propositions of law applicable to 
any case of circumstantial evidence. They undertake 
to formulate the law on the subject in a shape deemed 
by the learned counsel most favorable to the accused. 
But clearly the counsel of the defendant cannot be 
permitted to select the words of a charge of the law, 
nor, of course, to give the charge in the form of an 
argument in favor of the accused. All that they can 
ask is, that the law which regulates the rights of their 
client shall be fairly and fully stated, in the form 
proper to come from an impartial judge. If, therefore, 
they ask for charges of points of law, which have 
already been fully and fairly made to the jury, there 
is clearly no error in refusing the request; and, a fortiori, 
if the wording of the propositions submitted is that 
of an advocate, not of a judge. 

The burden of the several propositions is that in 
cases of circumstantial evidence alone the circumstances 
must be so strong, and so closely connected as to ex- 
clude every other reasonable hypothesis except that of 
the defendant's guilt. Repeated in diflFerent forms, 
laying stress now on the evidence necessary to estab- 
lish the controlling hypothesii^, now upon the certainty 
required to exclude every other hypothesis, and now 
upon the duty of the jury in weighing the evidence, 
this is the sum and substance of the various proposi- 
tions. But the trial judge has already, in language 
borrowed from the opinions of this court, expressed 
* the same idea in the form usually adopted in such 



362 NASHVILLE : 



Ilea p. The State. 



cases. He has said to the jury that the circumstances 
must not only be consistent with the guilt of the ac- 
cused, but must exclude every reasonable hypothesis 
but thjit of his guilt. And he elsewhero explains to 
them the law which should govern them in weighing 
the evidence, and especially in their finding on the 
defendant's hypothesis of an alibi. 

It is insisted, however, that the explanatory language 
of the judge, immediately following the clause just re- 
ferred to, qualifies that part of the charge, and makes 
the whole paragraph amount to no more than the 
repetition of the charge upon the point of a reasonable 
doubt. The defendant was entitled to both charges: 
Latvkss V. Statcy 4 Lea, 173; Turner v. Stcde, 4 Lea, 
206. And so bis Honor told the jury. What he 
meant by the closing words of the clause was, that 
the circumstances must be sufficient to convince the 
mind and conscience of the jury of the guilt of the 
accused beyond a reasonable doubt, to the exclusion of 
every other idea or hypothesis. He so understood it, 
when he told defendant's counsel that he had already 
charged their five propositions, and they so understood 
the charge, or they would have requested a modifica- 
tion of the language. The charge, taken together, 
admits of no other construction than that the jury 
must be satisfied of the guilt of the prisoner beyond 
a reasonable doubt, and to the exclusion of every other 
reasonable hypothesis. 

The l:ist of the requested pro [positions is that the 
jury should not convict on circumstantial evidence un- 
less it was as fully satisfactory to their minds as would 



DECEMBER TERM, 1881. 363 

Rea r. The State. 

be the positive swearing of one credible witness that 
he saw the defendant kill the deceased. It is con- 
ceded by the counsel of the prisoner that they have 
been unable to find any authority in support of the 
proposition. The authorities are in fact to the con- 
trary: Cicely V. State, 13 Sm. & M., .202; Jane v. 
Commonivealthy 2 Met, (Ky.), 30. The reason is obvi- 
ous. The instruction only says in a diflFerent form 
that the jury ought not to convict unless every rea- 
sonable doubt was excluded, and is therefore unneces- 
sary. If it means more, it would require a certainty 
which would exclude circumstantial evidence altogether. 
And the danger is that to many minds it would ap- 
pear to fairly imply the higher degree of. certainty. 
It would, moreover, require the juror not only to en- 
quire into the state of his mental convictions upon the 
question of reasonable doubt, but to go further and 
institute a comparison between the degree of conviction 
produced by the evidence, and that which would be 
the result of the testimony of one direct witness. It 
would, to use the language of the Supreme Court of 
Mississippi in the case cited above, "apply a rule which 
is neither practical nor altogether safe." No such in- 
struction has ever been sustained in this State, nor has 
any good reason been advanced why it should now 
be adopted. 

To show a motive for the prisoner's enmity to the 
deceased, the attorney general read the record of a 
presentment against one George W. Clark for carrying 
a pistol, made by the grand jury upon the testimony 
of the prisoner, and the record of an indictment against 



364 NASHVILLE: 



Rea i\ The State. 



the same person for an assault and battery on the 
prisoner, who was the prosecutor. The minutes of the 
court, under date of November 30th, 1880, contained 
an entry of a judgment discharging the defendant Clark 
from the first charge upon a noUe prosequi by the 
State, and a judgment of condemnation by confession 
under the indictment. The State introduced the judge's 
trial docket at the November term of the court, and 
read from it the docket entry of the case for carrying 
a pistol, and the judge's memorandum thus : 

The State 
148 V. C. pistol. Nov. 30, mistrial. Nol. pros. 30th. 

G. W. Clark. 

The State further proved by witnesses, without ob- 
jection, that Clark was tried under the presentment 
for carrying a pistol; that the trial was held on No- 
vember 30, 1880; that the prisoner was the principal 
witness for the State, and that the deceased, and two 
or three other persons, were introduced as witnesses 
by the defense, and swore that they were well ac- 
quainted with the general character of the prisoner, 
that his character was bad, and that they would not 
believe him on oath; that the jury failed to agree; 
and that the prisoner was greatly enraged against the 
deceased because of his testimony. 

The bill of exceptions, after setting out the record 
and proceedings in the two prosecutions against Clark 
and the entries on the judge's docket, shows the fol- 
lowing objectiop : " To all of which defendant, by his 
counsel, objected, which objection was overruled by the 
court, to which defendant then and there excepted." 



DECEMBER TERM, 1881. 365 

Rea V. The State. 

An objection to a certified copy of a record must 
specify the ground of objection, or it will be of no 
avail: Gamer v. State, 5 Lea, 21. The practice in 
this State has been to read the original papers and 
records of a cause upon a trial in another case in the 
same court in which they are offered in evidence : 
Nichol V. Ridley, 5 Yer., 63. An objection to the 
original record ought to be as specific as an objection 
to a certified copy. Nevertheless, in a criminal case 
involving human life, we are not inclined to visit on 
the defendant the consequences of the oversight of his 
counsel. 

The objection now taken to the records read is that 
they were not relevant to the issue, and that the entry 
on the judge's docket was not evidence for any pur- 
pose, and certainly not to contradict the minutc^s of 
the court. The issue in the present case was the 
guilt or innocence of the prisoner of the crime for 
which he was being tried, and to make out the charge 
of murder in the first degree it became necessary to 
show malice and premeditation. For this purpose, it 
was relevant to introduce proof tending to establish a 
ground of enmity between the prisoner and the de- 
ceased. Evidence that there had been a criminal trial 
in which the prisoner was the principal witness for the 
State, and that he was discredited by the deceased, 
whereby the prosecution failed, and the defendant greatly 
angered, was clearly relevant. The best evidence for 
this purpose, as far as it would go, was the record 
of the cases. And testimony that there was a trial 
of the presentment, in the course of which the prisoner 



366 NASHVILLE : 



Roa t'. The State. 



and the deceased were opposing witnesses, before the 
entry of a nol. pros., was admissible, for it did not 
contradict the record. The result of the trial may 
have led to the judgment. The parol proof was not 
objected to by the defendant. The objection made in 
argument is to the judge's memoranda on the trial 
docket. These memoranda, it is clear, were no part 
of the record, and should not have been admitted. 
But the only object of their introduction was to show 
that there was a mistrial, and inlerentially a trial. 
But this fact was established by the positive testimony 
of several witnesses, without objection, and was not 
disputed, the defendant both in writing and conversa- 
tion being shown to have referred to the trial, and 
the course of the deceased on that occasion. The 
court can clearly see that the memorandum was useless, 
and that its admission as evidence could not possibly 
have prejudiced the prisoner: McAdams v. State, MS. 
opinion at this term. 

The State proved, as we have mentioned, that on 
the day of the trial of the presentment against Clark, 
the defendant was greatly enraged at Goodrum for 
discrediting him, and used threatening language on the 
subject. There was a wedding at defendant's liouse on 
the 2d of December after the trial, to which deceased 
had been invited. Defendant wrote deceased a letter 
forbidding him to come to his house. And on that 
evening, he repeatedly said to several persons, and 
while at the table with his guests, that he would kill 
Goodrum, as one witness testifies, but as most of them 
say he would kill him if he came upon his premises. 



DECEMBER TERM, 1881. 367 

liea I'. The State. 

There is testimony of hostile language on other occa- 
sions. And one witness testifies that on May 1, de- 
fendant said to him that these fellows in the store 
were mad at him, and he would oust them yet. 

In this state of the proof, the defendant offered to 
prove by his brother, and other witnesses, that after 
the wedding and before the killing, the witness had 
heard the defendant say that he had no enmity against 
deceased, and wished to be, friendly with him, and sent 
him word to that effect. The State objected, and the 
objection was sustained. It is suggested, not argued, 
that this was error. But we are not aware of any 
principle upon which a criminal can thus be allowed 
to make evidence for himself. 

The evidence on which the prisoner was convicted 
is circumstantial, and his counsel have dwelt upon its 
insufficiency to sustain the verdict. 

The prisoner resides about two hundred yards nearly 
due east from a country store, which fronted on a 
public road running nearly north and south, and at 
which was kept the post-office of the neighborhood. 
James A. T. Goodrum, a young man, was a clerk in 
the store. On the night of the 'J3d of July, 1881, 
he was in the back room of the store with one Dwyer, 
a school master, who was teaching him latin. J. K. 
Trigg, the owner of the store, resided in a house about 
thirty yards to the south-west. His brother H. W. 
Trigg lived about one hundred yards from the store 
in a south-easterly direction, his dwelling being about 
one hundred and fiftv yards from the house of the 
prisoner. The public road was fenced on- both sides, 



368 NASHVILLE: 



Rea V, The State. 



the fence on the east belonging to the prisoner, and 
the fence on the west to J. K. Trigg. There was a 
fence around the store, to the north of which was first 
a potato patch or garden, and then a corn field ex- 
tending to the fence on the road. The prisoner had 
access to the road and the store by a private path 
through his lot. To the north of this path, immedi- 
ately adjacent to the fence on the public road was a 
sorghum patch, and behind in the same enclosure a 
corn field. The weather had been very dry, and the 
ground was dusty. 

About 9 o'clock on the night of the 23d of July, 
J. K. Trigg called to Goodrum from his residence to 
tell him the meaning of a word. Goodrum got up 
from his chair, wetit to the door which opened to the 
south, and answered the question. As he turned from 
the door to resume his seat, he was shot through a 
window in the rear of the room, five large buck shot 
striking him, one passing through the heart, and another 
through the head. Dwyer called for J. K. Trigg, 
and the two lifted deceased from the floor to which 
he had fallen, and placed him on the bed. J. K. 
Trigg then ordered his servant girl to go to his broth- 
er's, and ask him to ride for a doctor. H. W. Trigg 
was sitting in his house smoking, and heard the shot. 
He heard his brother's directions to the girl, and with- 
out waiting for her arrival, hastened to the stable about 
forty yards distant, caught up a bridle and put it on 
his horse, led the horse fifteen or twenty steps to the 
gate, where he met the girl, leaped on the horse and 
rode at a lope about one hundred yards to the house 



DECEMBER TERM, 1881. 369 

Rea V. The State. 

of a negro, whom he had in the meantime called out, 
put the negro on the horse, and directed him to ride 
for the doctor. The negro had gone fifty or seventy- 
five yards, when J. K. Trigg called out that Goodrum 
was dead, and requested that the negro be sent for the 
neighborhood constable, which was done. H. W. Trigg 
then turned back, and when near the stable, and about 
twenty yards from his gate, the defendant called to 
him from his house to know what was the matter, to 
which he replied that Goodrum had shot himself. The 
defendant made no further inquiry, and neither went 
to Trigg's house or to the store. All the neighbors, 
for two or three miles around, came to the store dur- 
ing the night. A watch was kept to prevent any 
person from going to the rear of the store where the 
assassin had stood. 

Early the next morning, before it was fairly light, 
Dwyer, Trigg, the constable, and others during the 
morning, examined the grounds. They found the place 
where the person stood who shot the gun. The weeds 
were freshly broken down, and ' the ground indented 
by his feet. By tracing backwards, it was found that 
the footsteps could be followed over the fence around 
the store, thence slightly diverging from that fence to 
the road, and across the road into the defendant's sor- 
ghum patch, and thence southward to the path from his 
house to the store. In other words, the person who 
shot the gun had gone from the path into the defend- 
ant's corn field and sorghum patch, thence across the 
road into Trigg's field and potato patch, and over the 

fence to the point at which he stood when he fired. 
24— VOL. 8. 



370 NASHVILLE : 



Rea V. The State. 



It was further found, that in going from this spot 
the person had started nearly north, crossing the store 
fence, thence north-easterly, through the patch and corn 
field, to the road at a point about fifty or sixty yards 
north of the store, thence across the road, angling 
southwardly, into the sorghum patch, thence to the 
corn field east, thence with the corn rows, changing the 
rows twice on account of weeds, to the path from the 
defendant's house to the store, and thence in the di- 
rection of defendant's house, to within forty yards of 
the house. The tracks were the same both going and 
coming, were measured, and were such as would be 
made by a number seven shoe. In going from the place 
where the shooting occurred, the tracks were those of 
a man in a rapid, walk, or, to use the words of the 
witnesses, "beyond the ordinary pace." Some of those 
present went to defendant's house, and calling him out^ 
asked him if he had heard any person go by that 
night. After a slight hesitation, he replied in the 
negative. They then said to him, that the footsteps 
had been tracked to within forty yards of his house. 
He then said, that he believed he did hear his wife 
say that she heard two or three persons pass last 
night, and the dogs run out and bark. The defend- 
ant asked* if they had examined for tracks about his 
barn, but did not offer to aid them. The way to the 
barn led off* from the path to the store. The parties 
examined, and did not find the tracks on this way. 

The defendant was taken into custody for the mur- 
der about 12 o'clock that day, being Sunday, and was 
examined by the committing magistrates on the next 



DECEMBER TERM, 1881. 371 



Rea V. The State. 



day. At some time, exactly when does not appear^ 
defendant walked out with some of the witnesses 
to examine the tracks in the field, and was no- 
ticed to walk on his toes. He said he had gravel 
in his shoes, and stopped two or three times to take 
the gravel out, but continued to walk on his toes, 
without making full tracks. The proof is that he 
wears "about a number seven shoe." 

The defendant said that at the time the shot was 
fired, he was in his kitchen, a few steps from his 
house, making a poultice to dress a blister on his 
wife, who was sick ; that his wife called him two or 
three times, but he did not go ; that she then called 
her two little nieces, who were sleeping in her room, 
but could not wake them ; that she then called him 
again, and he went to her; that she asked him if he 
had heard the gun, and he replied that he had. She 
then asked what it meant, and he went out and called 
to H. \V. Trigg, as stated by Trigg. 

The argument on his behalf is that he was in the 
kitchen at the time the gun was fired, and, at any 
rate, that he could not have shot the gun, and called 
'to H. W. Trigg from his house within the time he 
did. The distance direct between defendant's house 
j^nd the store is about two hundred yards. The dis- 
tance from the spot where the gun was fired, follow- 
ing the retreating steps in the course pursued to de- 
fendant's house, was about three hundred yards. It 
could be walked leisurely in six or seven minutes. 
It was actually run, as an experiment, by a person 
with a stick in his hand in one minute and a half^ 



372 NASHVILLE : 



Rea V, The State. 



H. W. Trigg says he talked with his wife a minute 
and a half before he started for his horse. The dis- 
tance then traversed by him before defendant called to 
him was from two hundred and fifty to three hundred 
yards; he thinks it was five minutes from the time 
of the shot until defendant called to him. It is 
obvious, that the question of time presents no diffi- 
culty. 

The proof shows that on the morning of the mur- 
der, about ten or eleven o'clock, the defendant bor- 
rowed a double barrel shot gun from a neighbor, 
saying that it was to kill a squirrel for his wife. 
He had made the same statement of his purpose to a 
witness on his way to the neighbor's. He got the 
gun. That evening, two shots were heard back of 
his barn. The gun, when borrowed, was loaded with 
squirrel shot. Afterwards, many marks of squirrel shot 
were found in a beech tree back of his house, and 
portions of paper powder marked, with shot holes 
through them, were found near the tree. These pieces 
of paper were ascertained, from the printed matter 
on them, to have been torn from a copy of a news- 
paper called the Pulaski Citizen of June 5, 1879. About* 
forty-five steps from the tree, where he seems to have stood, 
other pieces of pai)er, not powder marked, were pieked 
up, and a large buck shot of the size of those taken 
from the body of the deceased, and subsequently found 
in the gun. Thes pieces of paper were ascertained to 
have been torn from a copy of the Nashville Banner 
of March 24, 1881. In the rear of the store, between 
the window and the place where the person stood 



DECEMBER TERM, 1881. 373 

' ^^^m^m^m^^^ ■ ■ — ■ ■■■■■■ ■ — ■ ■■■ i» — ^i i ■ ^ ■ ■ ^^i^— ^»^^^— ^^— » 

Bea V, The State. 

when the gun was fired, pieces of wadding, scorched 
and powder marked, were picked up. These fragments 
were found to be parts of the Pulaski Citizen of June 
6, 1879, and of the Weekly Nashville Banner of 
the 24th March, 1881. The gun was found at 
defendant's house, up stairs, both barrels loaded. De- 
fendant said at the time that he had loaded the gun, 
that there were seven buck shot in one barrel and six 
in the other; that he had lost some meat and molas- 
ses and loaded the gun for thieves. The gun was 
unbreached, and the loads taken out, in the presence 
of the defendant, before the committing court on Mon- 
day morning. It was found that there were seven 
buck shot in one barrel, and six in the other, of the 
size of those cut out of the body of the deceased, and 
of the one shot found near the tree behind the barn. 
The wadding taken from the right hand barrel 
consisted of pieces of the Pulaski Citizen of the date 
of June 5, 1879. The wadding taken from the left 
hand barrel consisted of fragments from the Weekly 
Nashville Banner of March 24, 1881. The shot pouch, 
which defendant bad borrowed with the gun, was ob- 
tained at defendant's house on Tuesday morning, and 
was found to contain fragments of the same number 
of the Pulaski Citizen and of the Nashville Banner. 

It will thus be seen that the powder burned wad- 
ding shot from the gun near the tree back of defend- 
ant's house, and which was put into the gun by the 
owner, the fragments of paper found in the right hand 
barrel of the gun, and some of the fragments taken 
from the pouch and picked up under the window, 



374 NASHVILLE : 



Rea V. The State. 



consisted of parts of the same number of the Pulaski 
Citizen. 

It will also be seen that pieces of the scorched 
wadding found under the widow through which Good- 
rum was shot, the wadding of the left hand gun barrel, 
some of the fragments of the shot pouch, and the 
fragments found where the defendant stood when shoot- 
ing at the beech tree, are all from the same number 
of the Weekly Nashville Banner of the 24th of March, 
1881. 

The owner of the gun did not take the Banner, 
and is certain he loaded the gun with wadding from 
the Pulaski Citizen or the Pulaski Herald, he thinks 
from the Citizen. Dwyer, the school teacher, had re- 
ceived twelve copies of the Weekly Banner of the 24th 
March, 1881, sent him as specimen copies for distri- 
bution, and he had given one of these copies to the 
defendant. 

The only material evidence oflFered in defense con- 
sists of the testimony of the defendant's brother, and 
the mother of his wife. They both testify that when 
the shot pouch was sent for on Tuesday morning, the 
latter hunted it up, and handed it to the former, and 
he in her presence put his hand into the pouch, turned 
it upside down, and shook it, and there was nothing 
in it. A little boy, twelve years of age, who went 
after the pouch, took it to the store, and it was ex- 
amined by another witness in his presence, and they 
found in the pouch the fragments of the Weekly Ban- 
ner and Citizen introduced in evidence. In addition, 
a witness on the trial proved that a fragment of the 



DECEMBER TERM, 1881. 375 

Rea I'. The State. 

Banner taken from the pouch and another fragment 
taken from the left hand gun barrel, and the defend- 
ant admits he loaded both barrels, dovetailed. "The 
edges of the two," he says, "read together making 
correct words." 

The evidence is sufficient to sustain the verdict, and 
the judgment must be affirmed. 



W. W. Rea, alias Wm. Rea, you have been found 
guilty, by a jury of your county, of the crime of 
murder in the first degree without mitigating circum- 
stances, and we have discovered no error in the pro- 
ceedings. It becomes our duty to pronounce upon 
you the judgment of the law. That judgment is, that 
you be remanded to jail, and be taken thence to the 
county of Giles, and there securely confined until Fri- 
day, the 21st of April, 1882, on which day, between 
the hours of two and four o'clock in the afternoon, 
and on a gallows to he erected for the purpose within 
one mile of the court-house, you be hanged by the 
neck until you are dead. 



376 NASHVILLE : 



Cartwright i'. The State. 



Joseph Cartwhight v. The State. 

Criminal Law. Murder in the first degree* Intoxication, Tlie rule ex 
tracted from the decisions of this State in regard to drunkennens in 
trials for murder in the first degree is : If drunkenness exists to such 
an extent a,*< to render the defendant incapable of forming a premed- 
itated and deli|)erate design to kill, then of course he cannot be guilty 
of murder in the first degree ; still if drunkenness be not to this ex- 
tent, nevertheless the jury may consider the drunkenness in connec- 
tion with all the fact« to see whether the purpose to kill was formed 
in passion produced by a cause oj)erating upon a mind excited with 
liquor, not such adequate provocation as would reduce the killing to 
manslaughter, but nevertheless such as produced passion in fact and 
reduce the killing to murder in the second degree, or whether not- 
withstanding the purpose to kill was formed with deliberatiou and 
premeditation, for a drunken man may be guilty of murder in the 
first degree if the drunkenneas l)e not to such an extent as to render 
his mind incapable of deliberation and premeditation. 



FROM MACON. 



Appeal ^in error from the Circuit Court of Macon 
county. N. W. McConnell, J. 

J. L. RoARK and Jo. C. Guild for Cartwright. 

Attorney-General Lea for the State. 

McFarland, J., delivered the opinion of the court. 

The prisoner appeals to this court from a judgment 
of death pronounced against him by the circuit court 
of Macon county, for the murder of Hugh Sanders. 



DECEMBER TERM, 1881. 377 



Cartwright v. The State. 

The prisoner was indicted in said court in January, 
1879, for stealing a demijohn of wine from a church, 
was tried and acquitted in April, 1879 ; the deceased 
was a witness aganist him on the trial. Out of this 
afiair the animosity between the parties probably ori- 
ginated. They were both young men, the prisoner 
living in the town of liafayette — the deceased within 
a mile or two of the town. Sometime after the trial — 
precisely how long is not shewn — the prisoner left the 
county and remained away until a short time before 
the killing. It is claimed for the defense that he 
left from fear of the deceased. There is proof by 
several witnesses that from the time of the trial until 
shortly before the killing, the deceased made threats 
against the prisoner on several occasions. In only one 
instance does it appear that the threat was communi- 
cated jbo tbe prisoner — this was before he left the 
county. The threats in some instances were in sub- 
stance that the deceased had heard that the prisoner 
was going to charge the stealing the wine on him, and 
if he did he would kill him. On other occasions, he 
said they^ could not both live in the same county; 
that he expected a difficulty with him, and he would 
be ready for him. One threat was proven to have 
been made the day before the killing; but, as already 
stated, there is no proof that any of these threats were 
communicated to the prisoner except in the one in- 
stance. 

One witness proves that a week or ten days before 
the killing, they met at a spring in Lafayette, when 
the deceased made some hostile demonstration, and, as 



378 NASHVILLE : 



Cartwright «. The State. 



the witness thought, was about to draw a knife, and 
intimated that he would see the prisoner again. 

The killing occurred on the 13th of October, 1880, 
in the town of Lafayette. An hour or two before 
the killing, several young men, including the prisoner 
and deceased, were in front of Johnson^s hotel. They 
were engaged in playful conversation. The prisoner 
had a gun, and in the language of the witnesses, 
"was drinking,^' or had been drinking. One of the 
young men asked him " if carrying a gun made him 
drunk, if it did he would get him one,^' and deceased 
said, '^ if it makes you drunk, pass it around and we 
will all take a spree/' The prisoner did not seem to 
take offense at the language. 

The company separated, the prisoner and deceased 
going in different directions. Within an hour or two 
deceased and two other young men returned, and with 
Johnson, the proprietor of the house, were on the 
pavement in front of the hotel, the deceased sitting in 
a chair leaning back against the house. The prisoner 
was seen coming towards them, still carrying the gun^ 
Johnson asked deceased if he was not unea^ for fear 
the prisoner would attack him; he said, '*No, we have 
been at outs, but we have agreed to drop it, and we 
speak when we pass." This remark was brought out 
without objection. Prisoner came up— when near where 
the parties were sitting, turned a little off the pave^ 
ment and came around directly in front of the deceased, 
brought down his gun, and said, "G — d d — n you, I 
suppose you have got something against me," and in- 
stantly fired and shot the deceased through the body. 



DECEMBER TERM, 1881. 179 

C'artwright v. The State. 

from the eflFects of which he died in a few hours. 
It is fully proven by the three witnesses present that 
the deceased was unarmed and making no demonstra- 
tion whatever — the gun was very close to him when 
fired. The prisoner walked a short distance, then 
started to run across a field, but was captured and 
brought back. It was proven by nearly all the wit- 
nesses that the prisoner was in the habit of drinking 
too much. The father, mother and sister of the pris- 
oner prove that he had been drinking for perhaps 
three years, and their testimony indicates that at times 
he was subject to delirium tremens. They express the 
opinion that he was not of sound mind, but the effect 
of their testimony is that he at times had delirium 
tremens from the use of ardent spirits. The other 
witnesses in the main say he was sane on the day of 
the killing, and in fact was sane at all times. 

His father says he was wild and very drunk and 
out of his mind on the day of the killing — worse than 
he had seen him for months. The mother says he 
at times seemed very much depressed, and said deceased 
"charging him with stealing the wine, had put him 
below the respect of decent people." The witnesses^ 
pretty much all agree that the prisoner "was drinking" 
the day of the homicide, but to what extent he was 
under the influence of liquor their testimony differs 
somewhat. The witnesses for the State pretty generally 
say that he was "drinking but not drunk"; but that 
he was to some extent under the influence of liquor 
fully appears. 

Prisoner's father, who was postmaster, proves that 



^80 NASHVILLE : 



Cartwright v. The Seate. 



shortly before the killing the deceased came into his 
office and asked for a letter^ had his hands in his 
pockets, looked all around and walked hurriedly off. 
In a few moments prisoner came in, witness told him 
that deceased had been in, had his hands in his pock- 
ets, that he did not like his conduct, and feared mis- 
cief, and told prisoner he had better go home; be 
said he would as soon as he saw Willie Claiborne. 
He went out and shortly afterwards the killing oc- 
curred. A very short time before the killing, prisoner 
was seen looking in at Claiborne's store, as if looking 
for some one. 

This is a sufficient outline of the case for a proper 
understanding of the questions presented for our de- 
cision. 

Upon the subject of drunkenness the court charged 
the jury as follows; "Voluntary drunkenness is no 
excuse for the commission of a crime, but it may be 
looked to, to ascertain whether the offense has been 
<;ommitted or not. We have seen to commit murder 
in the first degree the killing must be done willfully, 
deliberately, premeditatedly, and with malice afore- 
thought. This requires certain states of the mind, and 
the question of the intoxication of the prisoner may 
be looked to, to see whether at the time of the kill- 
ing he had these states of mind. Was he so intoxi- 
cated that he was incapable of giving the consent of 
his will to the killing, or of deliberating and premed- 
itating the deed ; if he was, then he cannot be guilty 
of murder in the first degree. But if he was capable 
of willing, deliberating and premeditating the deed, then 



DECEMBER TERM, 1881. 381 

Cartwright v. The State. 

he is capable of committing murder in the first degree, 
notwithstanding his intoxication, and it can be no ex- 
cuse for him. The only effect that voluntary drunk- 
enness can have in any event, is to reduce the crime 
from murder in the first to murder in the second 
degree. It is never ground of entire justification, ex- 
cept it amounts to insanity, as will hereafter be ex- 
plained to you." 

Again, the judge says : " If you believe, beyond a 
reasonable doubt, he (the prisoner) shot Sanders in 
malice, not intending to kill him but did do it, or if 
you find he was so intoxicated that he was not capa- 
ble of that deliberation or premeditation necessary to 
make murder in the first degree, or you have a rea- 
sonable doubt how this is, you should find him guilty 
of murder in the second degree.'' This is the entire 
charge upon this subject. 

In the case of Haile v. Ihe State, 11 Hum., 164, 
the charge was as follows: "Voluntary drunkenness is 
no excuse for the commission of crime, on the con- 
trary it is considered by our law as rather an aggra- 
vation; yet if the defendant was so deeply intoxicated 
by spirituous liquors at the time of the killing as to 
be incapable of forming in his mind a design delib- 
erately and premeditately to do the act, the killing 
under such a state of intoxication would only be mur- 
der in the second degree." 

Upon a conviction for murder in the first degree 
the above charge was held to be erroneous. Judge 
Green, in delivering the opinion of the court, quotes 
from Judge Reese, in Swan v. The State, 4 Hum., 136^ 



382 NASHVILLE : 



Cartwright v. The State. 



as follows : " But although drunkenness iu point of 
law constitutes no excuse or justification for crime, 
still when the nature and essence of the crime is made 
to depend by law upon a peculiar state and condition 
of a criminal's mind at the time with reference to the 
act done, drunkenness as a matter of fact affecting such 
state and condition of mind, is a proper subject for 
consideration and enquiry by the jury. The question 
in such case is, what is the mental status? Is it one 
of self-possession, favorable to fixed purpose of delib- 
eration and premeditation, or did the act spring from 
existing passion, excited by inadequate provocation act- 
ing, it may be, on a peculiar temperament, or upon 
one already excited by ardent spirits? Tn such case, 
it matters not that the provocation was inadequate or 
the spirits voluntarily drank ; the question is, did the 
act proceed from sudden passion or from deliberation 
or premeditation? What was the mental status at the 
time of the act and with reference to the act? To 
regard the fact of drunkenness as meriting consideration 
in such a case is not to hold that drunkenness will 
excuse crime, but to enquire whether the very crime 
which the law defines and punishes has been in fact 
committed.'' 

Judge Green says : " In these remarks the court 
intended to be understood as distinctly indicating that 
a degree of drunkenness by which the party was greatly 
excited and which produced a state of mind unfavor- 
able to deliberation and premeditation, although not so 
excessive as to render the party absolutely incapable 
of forming a deliberate purpose, might be taken into 



DECEMBER TERM, 1881. 383 

Cartwright v. The State. 

- 

t^oDsideration by a jury in determing whether the killing 
was done with deliberation or premeditation/' 

Judge Green also quotes from Judge Turley, in 
PirUe V. The StcUe, 9 Hum., to the eflfect that it will 
often be a question whether the killing has been the 
result of sudden passion excited by a cause inadequate 
to reduce it to manslaughter, but still sufficient to 
mitigate it to murder in the second degree, * * * 
in such cases, whatever will throw light upon the men- 
tal status of the offender is legitimate, and among 
other things the fact that he was drunk ; not that 
this will excuse or mitigate the offense, if it were 
done willfully, deliberately, maliciously and premedi- 
tatedly (which it might well be though the perpetrator 
was drunk), but to show that the killing did not 
spring from a premeditated purpose, but sudden pas- 
sion excited by inadequate provocation such as might 
reasonably be expected to arouse sudden passion and 
heat to the point .of taking life without premeditation 
and . deliberation." 

Judge Green, in commenting on the above extract, 
in substance and effect says ; " The degree of drunk- 
enness which will shed light on the mental status of 
the offender, is not alone that excessive state of intoxi- 
cation which deprives the party of the capacity to frame 
in his mind a design deliberately and premeditatedly 
to do an act, but in addition any degree of intoxica- 
tion that may exist, in order that the jury miiy judge 
in view, of such intoxication, in connection with all 
the facts and circumstances, whether the act was pre- 
meditatedly and deliberately done." 



384 NASHVILLE: 



Cartwright v. The State. 



Following these authorities in the case of Lancaster 
V. The StatCj 2 Lea, 573, which was an indictment for 
an assault with intent to commit murder in the first 
degree, this court held the following charge to be er- 
roneous, to- wit: " If defendant had been drinking much 
or little it would be a circumstance for the jury to 
look to for the purpose of ascertaining whether the 
defendant's mind was so influenced by liquor as to 
incapacitate him from forming a deliberate and pre- 
meditated design, that is, his mind so much influenced 
by liquor as to be incapable of contemplating the result 
of his acts, and if this was the condition of his mind 
he could not be convicted of an assault with intent 
to commit murder in the first degree ; but if his mind 
was not in that condition and was not so much in- 
fluenced by liquor as to prevent him from forming 
a deliberate and premeditated design, drunkenness 
would then be no excuse and would not lessen the 
crime." • 

The rule to be extracted from these cases is about 
this: If drunkenness exists to such an extent as to 
render the defendant incapable of forming a premedi- 
tated and deliberate design to kill, then of course he 
cannot be guilty of murder in the first degree; still, 
if the drunkenness be not of this extent, nevertheless 
the jury may consider the drunkenness in connection 
with all the facts, to see whether the purpose to kill 
was formed in passion produced by a cause operating 
upon a mind excited with liquor — not such adequate 
provocation as would reduce the killing to manslaugh- 
ter — but nevertheless such as produced passion in fact, 



DECEMBER TERM, 1881. 385 

Cartwright r. The State. 

and reduce the killing to murder in the second de- 
gree, or whether notwithstanding the drunkenness the 
purpose to kill was formed with deliberation and pre- 
meditation, for a drunken man may be guilty of mur- 
der in the first degree if the drunkenness be not to 
such an extent as to render his mind incapable of de- 
liberation and premeditatioD. 

The conviction for murder in the first degree was 
affirmed in Swan's case, 4 Hum., 136, although he 
was intoxicated when the crime was committed. 

We are constrained to hold, upon the rule as thus 
established by these authorities, that the portion of his 
Honor's charge above set forth is erroneous. The 
jury were correctly told that if the prisoner was so 
intoxicated as to be incapable of deliberating and pre- 
meditating the deed, he could not be guilty of murder 
in the first degree; on the other hand, if notwith- 
standing his intoxication he was capable of deliberation 
and premeditation, then he might be found guilty of 
murder in the first degree. This was all well enough ; 
but the error is in making the whole eflFect of the 
prisoner's intoxication in reducing the killing to murder 
in the second degree depend upon whether the drunk- 
enness was to such an extent as to render the prisoner 
incapable of deliberation and premeditation; whereas, 
as we have seen, a degree of intoxication short of this 
may, when taken in connection with the other facts, 
show that the killing resulted from a purpose formed 
in passion, and not deliberately and premeditatedly ; 
and although there be no adequate provocation to re- 
duce the offense to manslaughter, yet if in this mode 
25 — VOT.. 8. 



386 NASHVILLE: 



Smith r. The State. 



the want of deliberation and premeditation appear, it 
may be reduced to murder in the second degree. 

In a case involving life, we do not feel ourselves 
at liberty to overlook this error, whatever we might 
think of the facts. The prisoner is entitled to a cor- 
rect exposition of the law. 

The judgment must, therefore, be reversed and the 
cause Temanded for a new trial. 



Jack Smith v. The State. 

« _ ^^^ 

1, Cbimikai; Law. Perjury. Indictment, Ghallengea, Where the defend- 

ant is charged in an indictment in two counts with perjury at differ- 
ent times and places, he is only f'.n titled to ten challenges. 

2. Same. Same. Same. Two counts. Election, It was not error to refuse 

to quash an indictment for perjury, which in two counts charged the 
defendant with perjury at different times and places, nor was it 
error in the trial judge to refuse to compel the attorney-general to 
elect upon which count he would prosecute. 



FROM DAVIDSON. 



Appeal in error from the Criminal Court of David- 
son county. J. M. Quarles, J. 

W. Hart for Smith. 

Attorney-General Lea for the State 



DECEMBER TERM, 1881. 387 



Smith V. The State. 



Deaderick, C. J., delivered the opinion of the court. 

Plaintiff in error swore before the grand jury that 
he saw one Weakley bet on a game of hazard and 
address at a certain time and place. This was sworn 
at the January term, 1880, of the criminal court of 
Davidson county. At the May term, 1881, upon the 
trial in the said court of said Weakley, for said offense, 
he swore he did not see said Weakley bet upon said 
game, and had never seen him bet in his life. 

At a subsequent day of said May term, 1881, of 
said criminal court, the plaintiff in error was indicted 
for perjury. The indictment contained two counts, 
one assigning perjury in the swearing before the grand 
jury, and the other assigning perjury in the swearing 
upon the trial in the criminal court. Upon the trial 
the defendant was convicted and sentenced to three 
years in the penitentiary. He moved in arrest of 
judgment and for a new trial, and said motions hay* 
ing been overruled, he has appealed in error to this 
court. 

Counsel for defendant insists that the court below 
erred in refusing to allow him more than ten chal- 
lenges, because he says two offenses are charged in 
distinct counts, and he was entitled to ten challenges 
for each offense. 

The indictment is for perjury, and on such an in- 
dictment the defendant is entitled to but ten chal- 
lenges, no matter whether it contains one count only, 
or more. So there waa no error in the refusal of 
the court to allow the number of challenges claimed. 



388 NASHVILLE: 



Smith V, The State. 



It is further insisted that the court erred in refus- 
ing to quash the indictment^ and also in refusing to 
compel the attorney- general to say on which of the 
two counts he would elect to try defendant, as the 
offenses were charged to have been committed at dif- 
ferent times and places. The evidence is not set out 
and it does not appear upon which count the verdict 
was founded. 

It has been held by this court that the joinder of 
several distinct felonies of the same grade and charac- 
ter in different counts, constitutes no ground of de- 
murrer or arrest of judgment, and of course cannot be 
assigned as error in this court: 4 Hum., 194; 3 Lea, 
558; 3 Heis., 158. 

The court may, in its discretion, where the acts are 
distinct, to prevent prejudice to the prisoner, or em- 
barrassment in his just defense, compel an election. 
But in a case like this, where it might be difficult 
for the State to determine on which occasion the false 
swearing was done, and where it was probable peijury 
had been committed, either before the grand jury, or 
on the trial, we think the action of the court was 
altogether proper. 

The indictment informed the prisoner that he had 
sworn falsely in one case or the other, giving him 
ample opportunity to make his defense. 

There is no error in the record, and the judgment 
will be affirmed. 



DECEMBER TERM, 1881. 389 



Nichol V. Davidson Countj. 



P. L, NicHOL et al. v. County of Davidson. 

1. HoMESTEiLD. Under Act of 1868. Under the act of 1868 homestead 

was allowed to the head of the familj, and if the hushand heing head 
of the family conveyed the land not reserving homestead, although 
his wife did not join in the deed, the homestead was thereby lost. 

2. Same. Fraudulent conveyance. Homestead right is dependent upon 

and attached to some right in the property, and the transfer of the 
property itself carries with it the right of homestead unless it is ex- 
pressly reserved. A deed, therefore, by husband to wife surrendered 
the homestead under the act of 1868, and if said deed at the instance 
of creditors was set aside as fraudulent by the chancery court, the 
right of homestead would not revert to him, but homestead would be 
lost by the fraudulent conveyance. Cowan v. Johnson and Qibbs v. 
Potion cited and approved. 



FROM DAVIDSON. 



Appeal from the Chancery Court at Nashville. W. 
F. Cooper, Ch. 

Bate & Williams, R. L. Morris and Ed. Baxter 
for complainants. 

DoDD & Guild and E. H. East for defendant. 

EwiNG, Sp. J., delivered the opinion of the court. 

The bill is filed by P. L. Nichol and wife and 
their four minor children, claiming a homestead right 
in realty bought by the defendant at a master's sale. 
The defendant demurred. 

On the 4th March, 1865, P. L. Nichol bought oer- 



390 NASHVILLE: 



Nichol V. Davidson County. 



tain lots in West Nashville, erected a dwelling house 
thereon, and resided in it with his family from 1866 
to 1876. On April 2d, 1870, he conveyed the prop- 
erty to his wife, Sue M. Nichol, to her sole and sep- 
arate use during the joint lives of himself and wife, 
to himself in fee if he survived her, and if she sur- 
vived him to her for life with remainder to their chil- 
dren, etc., with power in her "to sell, lease, mortgage, 
exchange or otherwise dispose of the property,*' and 
when any of the property is sold and disposed of, says 
the deed, "the proceeds are to be invested on the same 
trusts and held as aforesaid." On July 23d, 1870, 
Nichol and wife joined in executing a mortgage on the 
property, and on September 21st, 1870, they executed 
a second mortgage. On May 4th, 1872, they joined 
in conveying the same property in trust to secure 
Bradford Nichol as endorser of a note of P. L. Nichol 
to the defendant, given to secure the debt for which 
the property was eventually sold, and which debt ori- 
ginated by the collection by P. L. Nichol, as clerk 
of Davidson county court, of county revenue from 
March Ist, 1870 to April 4th, 1870. This deed of 
trust, besides conveying the property,, expressly waived 
all right to dower, equity of r8demption, or right un- 
der exemption and homestead laws. 

Afterwards, in a suit in the chancery court at Nash- 
ville, of P. L. Nichol and wife against one A. C. 
Nichol and others and under a cross-bill of defendant 
(the county of Davidson), the conveyance by Nichol to 
his wife was, by the chancellor, and afterwards on ap- 
peal by this court, declared to be void as against the 



DECEMBER TERM, 1881. 391 



Nichol V. Davidson County. 



county of Davidson as a creditor, and the property 
ordered to be sold in satisfaction of P. L. NichoFs 
indebtedness to the county as aforesaid. Under the 
decree of this court, the property was sold on the 16th 
of October, 1875, and sale confirmed on the 18th of 
April, 1876. The complainants were in the actual use 
and occupation of the property at the date of the sale, 
as they say, as a homestead, and so remained and con- 
tinued for some time thereafter. They also state that 
they have not since had nor have they now any other 
homestead. The property .was surrendered, however, 
to the purchaser voluntarily, so far as appears. The 
bill alleges that the final decree in the supreme court 
was rendered May 18th, 1875, and that complainant, 
P. L. Nichol, through his attorney, sought to obtain 
an order of court for the allotment of a homestead, 
but was informed by the attorney that the court was 
on the eve of adjournment and would not then act 
upon the matter. It further alleges that said P. L. 
Nichol has since sought the homestead allowance from 
the defendant through its fiscal agent, the county judge, 
who has refused to allow it. To the bill contatning 
these allegations, the defendant filed a demurrer suffi- 
ciently specific to meet the alleged equities; the chan- 
cellor sustained the demurrer, dismissed the bill, and 
the case is now here upon appeal. The bill was filed 
the 30th of June, 1877. 

By the act of March 12th, 1868, ch. 85, sec. 2, 
the homestead of any housekeeper or head of a family 
residing in this State, to the value of $1,000, consist- 
ing of a dwelling-house and out- buildings and land 



392 NASHVILLE: 

• 



Nichol V. Davidson County. 



appurtenant^ occupied by such person as a homestead, 
was exempted from execution or attachment for the 
debts of such head of a family or housekeeper. By 
sec. 3d the act was made to apply as well to equita- 
ble as to legal estates. The Constitution of 1870, art. 
11, sec. 11, reads thus: "A homestead in the posses- 
sion of each head of a family and the improvements 
thereon, to the value of $1,000, shall be exempt from 
sale under legal process during the life of such head of 
a family, to enure to the benefit of the widow, and 
shall be exempt during the minority of the children 
occupying the same. Nor shall said property be alien- 
ated without the joint consent of husband and wife 
when that relation exists. This exemption shall not 
operate against public taxes, nor debts created for the 
purchase-money of such homestead or improvements 
thereon. The Constitution took effect on May 5th, 
1870. On June 27th, 1870, the General Assembly 
repealed the act of 1868, but made provision for a 
homestead in accordance with the Constitution, by an 
act carried into the Code in sees. 2114a to 2122 a. 
Under this law the homestead is made to extend to 
equitable as well as legal estates, and "shall not be 
alienated without the joint consent of husband and wife 
where that relation exists, to be evidenced by convey- 
ance duly executed, as required by law for married 
women." It has been held in several cases by this 
court that the homestead right is saved as against 
debts which were contracted subsequent to the act of 
1868, although prior to the act of 1870. So that the 
continuous occupancy of the property in controversy 



DECEMBER TERM, 1881. 393 

Nichol V. Davidson County. 

from 1866 to 1876 as a homestead by the complain- 
aDt« would, if there were nothing else in the case, 
entitle them to the homestead right. 

It S€ems to be conceded by counsel for complain- 
ants that the right to homestead in this ca6e exists, 
if it exist at all, under the act of 1868, in the first 
instance; and that if it was effectually parted with 
before the adoption of the Constitution of 1870, it 
does not now exist. But it is denied that it had 
been so effectually parted with before that time. It 
is admitted that it may have been given up and sur- 
rendered by a deed of the head of the. family valid 
without joining a wife under the act of 1868, and that 
such deed need only be in the usual form of a con- 
veyance of land. If it be said, however, that theaie 
admissions and concessions are not made, we neverthe- 
less regard the law to be as stated. We regard the 
homestead right to be one dependent upon and attached 
to some right in the property, and that the transfer 
of the property itself carries with it the right of home- 
stead unless the latter right be expressly reserved. 
The homestead right cannot stand without the support 
of property — it would be an attribute without sub- 
stance. 

The law being such, it may be that the only in- 
quiry necessary in this case will be, was the deed of 
P. L. Nichol to his wife purporting to convey the 
whole property, a deed to all intents and purposes 
valid and sufBcient to pass from him his homestead 
right at a time when his wife and children had no 
legal interest in that right? If he had then had no 



394 NASHVILLE: 



Xichol V. Davidson County. 



creditorsj the deed would undoubtedly have passed suck 
a right, and he could in no way and under no con- 
tingency have claimed it. It is not insisted that his 
wife could claim it, as she was not the head of a 
family. The right in him was simply lost in the 
transfer, as if the property had been conveyed to a 
stranger who was not the head of a family, or who 
had no possession to sustain a homestead right. 

It is said, however, that though the deed might 
have been valid and efiPectual to pass the homestead 
right if there had been no creditors, that in fact there 
was a creditor and that this creditor took eflfectual 
action against the deed and had it set aside, and that 
the deed was thenceforward to be regarded as a nullity, 
and that especially in this case the creditor, who is 
also the purchaser of the property, is estopped from 
denying the nullity of the deed, and that Nichol now 
stands in regard to the property as if the deed had 
never been made. To these views we cannot give our 
assent. The deed of Nichol to his wife was, to all 
intents and purposes, good and valid except as to cred- 
itors, who were simply allowed to disregard it so far 
as they were concerned. The title to the property 
was in Mrs. Nichol according to the terms of the 
deed to her, fubject only to the payment of such debts 
as might be asserted against it. As much in her as 
if there had been a lien upon the property which 
might be paid off. The principle .upon which prop- 
erty fraudulently conveyed is subject to the payment 
of debts, is merely that of nan obstante. To be sure,, 
if the property be sold for the debt and there is any 



DECEMBER TERM, 1881. 395 

Nichol V, Davidson County. 

one who being the head of a family is in possession 
of the homestead, his right would not be reached. 
But being the head of a family and merely living in 
the house is not being in possession of a homestead. 

The case of Cowan v. Johnson, MS., Knoxville, 
(cited by Judge Cooper in Gibbs v. Patton, 2 Lea, 183, 
as reported in 2 Law & Eq. Reports, 78), has been 
cited here in support of the doctrine that by the fraud- 
ulent conveyance the homestead right was lost. This 
was a case arising under conveyances made after the 
adoption of the Constitution and the statute of 1870, 
in regard to homestead. In that case husband and. 
wife made a conveyance to the wife^s father, who af- 
terward reconveyed to the wife; both of these con- 
veyances were held to be void as to creditors and 
homestead was denied the wife. Judge Lea, who gave 
the opinion in the case, says : " When the wife exe- 
cuted and acknowledged the deed, although fraudulently 
done by her husband, she thereby parted with the 
right to homestead, and the fact that the land was 
fraudulently conveyed back to her, will not entitle her 
to homestead." The principle of this case, if it be 
law, applies here. Indeed the case now before us- 
stands even upon stronger ground than that, as it is 
the husband who loses the right here — the guilty party 
in the fraudulent conveyance. But this case has been 
severely criticized by the complainant's counsel, and its 
authority denied. It is said that its force has been 
broken by other and subsequent decisions. The cases 
of Rucks V. Hooke, 3 Lea, 305, and of Gibbs v. Patton, 
2 Lea, 183, and the remarks of the author of MilH- 



396 NASHVILLE : 



Nichol V. Davidson County. 



ken's Digest, p. 1604, are referred to as impugning 
the correctness of the opinion in Cowan v. Johnson. 
Upon looking into the opinions in the cases referred 
to, we are at a loss to see upon what grounds they 
have been supposed to weaken the force of Cowan v. 
John807i, The learned judge who wrote the opinion 
in the case of Rucks v. Hoke^ a case where the wife 
at the utmost only accepted a fraudulent conveyance, 
says : " Without discussing the correctness of that de- 
cision {Coioan V. Johnson), resting as it does perhaps 
on an estoppel on her part, or it may be on the 
ground of active participation in attempted fraud by 
the wife, we distinguish this case from that, on the 
ground that the wife has not participated in any fraud/' 
No further reference is made to the case of Cowan v. 
Johnson. In the case of Gibbs v. Patton, the judge 
says: "This State, it will be seen, has ranged itself 
with those States which hold that such a conveyance 
estops the husband and wife from claiming a home- 
stead '' : citing Cowan v. Johnson, " And notwithstand- 
ing the larger array of authorities on the other side, 
I am not prepared to say that the decision is not 
founded in purer ethics in that it visits fraud with 
severer ^ penalties." If the case of Cowan v. Johnson 
stood alone upon the idea that the loss of homestead 
right was a penalty for participation in fraud, there 
would seem to be some hardship in it ; much greater than 
in the present case, where the loss falls upon the hus- 
band who claims under the act of 1868, when the 
wife had no recognized rights — the husband who is 
always the chief perpetrator of the fraud. 



DECEMBER TERM, 1881. 397 

Nichol V, Davidson County. 

The strongest ground against * the claim of home- 
stead in this case is, that by the conveyance the home- 
stead right ceases to exist in the maker of the deed, 
and can only be brought into life on behalf of the 
conveyee by his occupancy of the land as the head of 
a &.mily, or by his conveying to another who being 
the head of a &mily shall occupy the land. But if 
the creditor before this union of title, of headship and 
occupancy shall take place, have the land sold, the 
purchaser cannot be disturbed when once in possession ; 
for no one either has or ever can have the homestead 
right against him. This principle and consequence of 
course depends upon another which has been already 
stated^ that the conveyee under a fraudulent convey- 
ance gets a title which is good, valid and complete 
except against the claims of creditors. In this case, 
P. L. Nichol by his conveyance to his wife parted 
with his right of homestead, as he would have done 
to a stranger if the conveyance had been to him. 
After that, his occupancy had no estate to support it. 
His wife had no recognizable right under the act of 
1868, and acquired none under the Constitution and 
act of 1870, because she was not the head of a family, 
nor was she the wife of one who had by occupancy 
a homestead right. 

It will be seen, by reference to the briefs and ar- 
guments for complainants in this case, that much of 
their ingenuity and most of their authorities are ad- 
duced upon the assumption that the fraudulent convey- 
ance was a nullity, and that this out of the way, the 
the right of homestead revived in the conveyor, or 



398 NASHVILLE : 



Nichol V. Davidson County, 



that he or his wife 6r the two together, acquired some 
new rights under the Constitution of 1870 and the act 
following it. We deem it unnecessary to examine and 
criticize the authorities of other States seeming to have 
a bearing on this case. There is no case perhaps 
precisely analogous to it, and we are satisfied to rest 
this case upon principle and the case of Ckywan v. 
Johnson, already decided. 

Nothing is said in this opinion as to the effect of 
the decree and sale and the &ilure of complainants to 
set up their claim before the final decree in the case 
of Nichol V. Nicholj and the surrender of possession of 
property, and nothing is intended to be decided on 
that subject. The decree of the chancellor will be 
affirmed. 

The demurrer will be sustained and the bill dis- 
missed with costs. 



DECEMBER TERM, 1881. 399 



State ex rd. Baber v. Nolan. 



State, ex rd, W. H. Baser v. J. N. Nolan, Compter.. 

Tbxjstee. Fees, Sale of land for taxes. A county trustee is not entitled 
to a fee of fifty cents for the sale of each tract of land for taxes due 
in 1879-80. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of Davidson 
county. F. T. Reid, J. 

J. W. Blackmore for Baber. 

Samuel. Watson and Attorney-General Lea fop 
Comptroller. 

Deaderick, C. J., delivered the opinion of the court. 

This is a petition for mandamus to compel the 
•comptroller, Nolan, to pay the relator, Baber, trustee 
df Sumner county, fifty cents each for the sale of nu- 
merous tracts of land for taxes due in 1879 and 1880. 
The defendant demurred because, 

1st. The proceeding was a suit against the State, 
which cannot be maintained. 

2d. Because there is no law authorizing the rela- 
tor (Baber) to charge fifty cents, or any other sum, 
for the sale of each separate tract of land for taxes. 

The court held the second ground of demurrer to 
be well taken and dismissed the petition, from which 
.judgment the said. Baber appeals. 

The act of 1875, entitled "An act more cheaply 



8L8W 
UL 164 



400 NASHVILLE : 



State ex rel. Baber v. Nolan, 



to collect State, county and municipal revenue," abol- 
ished the office of collector of said revenue, and made 
the county trustee collector of the same. 

The 10th section of that act, as compensation for 
his services, allows him a per centage on his collections. 
The 21st section of the act provides that the trustee 
shall receive no fee, commission or compensation for 
his services under this act other than is therein spe- 
cified. And the 23d section of the act declares that 
said trustee shall not be entitled to receive or retain^ 
under any pretext whatever, any commissions, fees, 
emoluments, or other compensation except as herein 
especially specified and declared. 

The sheriff, as collector of taxes, had been allowed 
fifty cents for the sale of each tract of land for taxes. 
But no such fee is provided by the act of 1875 for 
the trus'tee, whose duty it became by that act to col- 
lect the . revenue for the State, counties and munici- 
palities. And it is very clearly declared by that act, 
that for the services incident to the collection of taxes 
his compensation should be commissions on collections, 
fixed by the act, and in no other mode. 

It is argued that the act of 1879, which amends 
the act of 1875, recognizes the right of the trustee to 
this fee of fifty cents, and to that extent amends the 
act of 1875. The amendment made by the act of 
1879, relieves the trustee of certain duties imposed by 
the act of 1875, and directs that he shall make a 
report of lands of delinquents, and gives the form of 
such report, which it declares shall be sufficient, to- wit: 
" One tract or lot of land of acres, lying in civil 



DECEMBER TERM, 1881. 401 

State ex rd. Baber v. Nolan. 

district No. ; valued at $ ; taxes ; clerk's 

fees $ 1 ; trustee's fee, fifty cents ; total, $- ." 

Section 5 of the act declares that the clerk should 
be allowed one dollar for each tract of laud in the 
trustee's report, for docketing the same, but it does not 
declare that any further allowance than that provided 
by the act of 1875, should be allowed to the trustee. 

Section 6 of the act gives the form of the trustee's 
report, and by way of illustrating gives the item, 
"trustee's fee, fifty cents," perhaps under the idea that 
such a fee was allowed by previous legislation. But 
it does not purport to be a legislative enactment, or 
declaration that such a fee shall be allowed to the 
trustee, but merely a form for a report, which will 
be deemed sufficient. So it is not especially provided 
by law that the trustee is entitled to such a fee. 
Sec. 4517 of the Code declares that " no officer is 
allowed to demand or receive fees, or other compensa- 
tion for any services, further than is especially pro- 
vided by law." 

If it had been the intention of the Legislature of 
1879, to enact that the trustee should ha've the fee of 
fifty cents, it \vould have been most natural to have 
placed the declaration in sec. 5, where it is enacted 
that the clerk shall have a fee of ?1, and not in the 
form prescribed for a report by the trustee, in sec. 6, 
where the items are blanks, except the clerk's fees 
and trustee's fee. 

We are of opinion that there is no law providing 

that trustees shall have this fee of fifty cents, and the 

judgment below is affirmed. 
26— VOL. 8. 



402 NASHVILLE : 



Smith r. The State. 



101 SM Sidney Smith and Henry Smith v. The State. 

Cribcinal Law. AsmuU. It is error ou the trial of an indictment for 
assault and battery to charge the jury thus : ," If you find from the 
evidence that the defendant provoked the assault by word or act, and 
then willingly engaged in the fight^ he would be guilty although he 
may have been first assailed or stricken by the prosecutor." 



FROM WII^SON. 



Appeal in error from the Circuit Court of Wilson 
county. Robert Cantrell, J. 

B. J. Tarver for Smith. 

W. H. Thoma for The Stftte. 

Cooper, J., delivered the opinion of the court. 

Sidney Smith, and his son Henry Smith were in- 
dicted for an assault and battery of Brent Cox, the 
prosecutor. A severance was had, and each was tried 
and convicted upon substantially the same evidence, 
and the same charge of the court to the jury. Each 
appealed in error, and now relies upon the same ground 
of reversal. 

Sidney Smith and the prosecutor were the joint 
owners of a mower, and, from something that had 
passed between them. Smith thought ^at he had sold 
his share to the prosecutor. On the day of the diflB- 
culty between them, a third person, one Stewart, who 



DECEMBER TERM, 1881. 403 

^— ^■^■— ^— ^■— ^— ■ ■ ■ ^l— I ■ M ■ ■■ I ■■ » .11 ■ ■ m. »■ ■ ■ fc ■ ■ ■ ■■ W^^l^— M^—^— ^^— ^^B^M 

Smith r. The State. 

had bought from the prosecutor his original interest 
in the mower^ went to Smith's house to make a trade 
with Smith in relation to the machine. Smith denied 
having any interest, and was requested by Stewart to 
go over and see the prosecutor, The defendant Henry 
also told his father, to go, saying that the prosecutor 
owed him a little money, and that if he did not pay 
it there would be a fuss. On their way to the resi- 
dence of the prosecutor, Stewart says he told Smith 
not to have any fuss, and he replied that he was so 
mad that he did not know what he was going to do. 
The prosecutor was hauling corn to his barn where 
the difficulty occurred. The elder Smith asked the 
prosecutor if he owned the machine, and he replied 
in the negative, saying that if he bought it, he was 
not going to take it, and was only joking. The de- 
fendant then cursed a good deal, and said the prose- 
cutor was a liar and the truth was not in him. The 
prosecutor, who was standing on the rear end of the 
wagon, said he could not stand that, picked up an ear 
of corp, and jumped from the wagon. He then drop- 
ped the corn, and after a momentary halt, moved 
towards Smith, who perhaps met him half way, and 
struck him a pushing blow, which Smith endeavored 
to return. The elder Smith was pushed backwards 
against a box, and the younger Smith struck the pros- 
ecutor with a doubletree. The difficulty then ended, 
nobody being hurt. The son had said nothing, nor 
done anything until he struck the prosecutor. The 
prosecutor says he weighs 175 pounds, and is 35 years 
of age. The elder Smith is 65 years old. The age 



404 NASHVILLE : 



Smith V. The State. 



of the younger Smith is not given. Prosecutor had 
said he did not want to have a difl&eulty with defend- 
ant as he was an old man, and defendant replied that 
his age did not make a damn bit of difference. 

The court charged the jury, amongst other things 
not excepted to, as follows: "If. you find from the 
evidence that defendant Sidney Smith provoked the 
assault by word or act, and then willingly engaged in 
the fight, he would be guilty although he may have 
been first assaulted or stricken by the prosecutor. But 
as to how the facts are, you must determine." 

The charge is equivalent to telling the jury that. if 
Smith provoked the assault by word, and then, wil- 
lingly engaged in the fight, he would be guilty, al- 
though first assaulted and struck by the prosecutor. 
But it is universally held that no words whatever can 
amount to an assault: 2 Bish. Crim. Law, sec. 25. 
If, therefore, we omit the provocation by word, the 
charge is, in substance, that the defendant, although 
first assailed and struck by the prosecutor, is guilty of 
an assault and battery on the prosecutor if he willingly 
engaged in the fight. The general rule undoubtedly 
is that a man may protect his person from assault and 
injury by opposing force to force, and is not obliged 
to wait until he is struck, but may protect himself 
by striking the first blow, proportioning his defense to 
the exigency . 3 Gr. Ev., sec. 64 ; McLemore v. Moore, 
1 Leg. Rep., 19. The charge requires the rule to be 
limited to cases where the person attacked fights un- 
willingly. If he is first assaulted and struck but fights 
back willingly, he is guilty of an assault and battery, 



DECEMBER TERM, 1881. 405 

Smith V. The State. 

although the violence used was not greater than was 
necessary to repel the attack. In other words, it is 
self-defense if the person assaulted fight unwillingly, 
but an assault and battery of his -antagonist if he fight 
willingly. We. are not aware of any principle or de- 
cision which makes the character of the act, if in re- 
ality it be only such as the law allows in defense of 
the person, depend upon the state of his mind. If 
he is entitled to defend himself from an assault, and 
uses no more violence than is necessary for the pur- 
pose, he cannot be guilty of an assault and battery 
on his advgrsary. 

On the trial of the son, the charge on this point 
was : " If you should find that the father of the de- 
fendant provoked the prosecutor to assault him by 
words or acts, and afterwards willingly engaged in the 
fight, the father in such case would be a wrong-doer, 
and the son would have no right to engage in the 
fight. ^^ It is substantially the same as in the other 
case. 

The charge is erroneous in each case, and the judg- 
ment must be reversed. 



406 NASHVILLE : 



Gas Light Co. v. City of Nashville. 



Br 4/5} 

9pi407\ Nashville Gas Light Co. v. Mayor and City Coun- 
cil OF Nashville. 

Taxation. Joint-9tock companies. Share-holders. ' Beal etttale. Under the 
act of 1873, ch. 118, joint-stock companies are liable to pay the tax 
imposed upon their share-holders and also u()on their real estate, 
though the real estate may have been purchased with money paid in 
as capital stock. 



FROM DAVIDSON. 



Appeal in ereor from the Circuit Court of Davidson, 
county. Frank T. Reid, J. 

Demoss & Malone for Gas Light Company. 
W. K. McAlister for City. 

Em'ING, Sp. J., delivered the opinion of the court. 

The question presented in this case is the liability 
of certain real estate belonging to the Nashville Gas 
Light Company to municipal taxation. The City of 
Nashville, by an assessment of 1873, imposed upon this 
real estate a tax for that year. This assessment is 
resisted upon the ground that this real estate consti- 
tutes part of the capital stock of said company, and 
as such is not liable to taxation in virtue of the 8th 
section of the act of the General Assembly of 1873, 

ch. 118, entitled "An act to provide more just and 

• 

equitable laws for the assessment and collection of rev-- 



DECEMBER TERM, 1881. 407 

Gas Light Co. v. City of Nashville. 

enue for State and county purposes," etc. The section 
provides that no tax shall hereafter be assessed upon 
the capital of any joint- stock company of the State, 
but that the share holders shall be assessed on the 
value of their shares of stock therein; with a proviso 
that this shall not be so construed as to exempt from 
taxation the real estate held or owned by any such cor- 
poration. The shares of the share-holders were as- 
sessed for the. year 1873 and the tax has been collected. 
It is admitted in argument that much the largest por- 
tion of this real estate is occupied and used for a gas 
factory and its necessary appurtenances, and was prob- 
ably bought, with money paid in as capital for stock 
in said company. Does the assessment violate the act? 
Without this act both the capital and the shares 
might be assessed for taxes, the one as owned by the 
corporation and the others by the individual share- 
holders. To prevent this seeming injustice the act of 
1873 provides that only the real estate of the corpo- 
ration shall be taxed. Taking into view the privileges 
granted to joint-stock companies, this mny well have 
seemed to the Legislature a fair adjustment of the 
question of taxation in regard to their stock- holders. 
However this may be, it is very clear that the Leg- 
islature has not exempted such real estate from taxa- 
tion, unless it be in virtue of the exemption of the 
capital. In this case it is said that the manufactory 
property is the capital, and moreover that this as the 
property of a private corporation is personalty, and 
for both reasons does not come within the proviso of 
the statute. But the property, on the contrary, is 



408 NASHVILLE : 



Gas Light Co. r. City of Nashville. 



real estate in its nature and is h-eld and owned by 
the corporation. I should say, independent of any 
authority upon the subject, that however such property 
might be regarded by the stock-holders as among them- 
selves and by the courts in the winding up of the 
afiairs of the corporation, as personal or real property, 
that the State for purposes of taxation would look 
upon it as real property, and so would be taxed and 
thus come under the proviso. It is said, though, that 
the authorities are the other way. 

The authorities referred to by plaintiff are two from 
other States anrl three from Tennessee. The case of 
the Lehigh Navigation Co. v. Southampton County^ 8 
Watts & Serg., 334, was a case in which a county had 
imposed a tax upon the land occupied by a canal, and 
some grounds occupied by houses necessary to the use 
of the canal, as real estate. The judge who decided 
/the case assumed that the grounds occupied by a canal 
ill public use, though owned by a private corporation, 
were not taxable, and as a consequence that the 
grounds and houses necessary to its proi>er use were 
also exempt ; but he goes on further to say that they 
were not taxable as real estate, because the stock of 
share-holders was personal property. This last propo- 
sition is certainly a non sequitur, and is in effect con- 
tradicted by the decision in 9 Yer., 490, of the Union 
Bank v. The State^ where the distinction is clearly taken 
between the ownership of shares by individuals and 
that of property by the corporation. The assumption 
in regard to the non-taxability of canal grounds does 
not accord with anything as yet decided by our courts; 



DECEMBER TERM, 18»1. 409 



Gas Light Co. v. City of Nashville. 

the tendency of whose decisions seems to be the other 
way. The case from 30 Missouri, 550, of Hannibaly 
etCy Raihoay v. Shacklett, was one where the road-bed, 
etc., of a railway was attempted to be taxed under a 
general provision of law that '* all property owned by 
incorporated companies over and above their capital 
stock should be assessed for taxation." In that case 
it is stated by the court that in regard to railways 
there had been several legislative recognitions that the 
road-bed, etc., should be deemed part of the capital 
stock. In regard to one of the railroads it was de- 
clared that the "capital stock, together with all ma- 
chines and engines are declared vested in the share- 
holders forever." With great hesitation the court held 
that the road-bed, etc., was not taxable under the pro- 
vision above quoted. Now it seems to me that this 
case is no authority against taxation under the plain 
terms of the proviso to the 8th section of the act of 
1873, that the real estate held by joint-stock companies 
shall not be exempt from taxation. Once establish 
the principle in the face of this proviso that the real 
estate occupied by factory buildings shall be considered 
part or the whole of the capital stock and so exempt 
from taxation, and any amount of money might be 
put into expensive buildings derived from profits which 
could not be reached by taxation either as real or 
personal property, at least without difficulty and con- 
fusion. 

The cases referred to in our books certainly do not 
sustain the plaintifF^s position. The case of Day v. 
Joiner, 6 Baxter, 441, was one where it was said an 



410 NASHVILLE: 



Gas Light Co. v. City of Nashville. 



exemption of the railway bed and its appurtenances, 
did not include a hotel built on some of the ground 
which might otherwise have been exempt. The case 
above from Pennsylvania, is quoted upon this point 
alone, but with no approval otherwise. The case of 
the De Soto Bank v. Memphis j 6 Baxt., 415, is to the 
f^ame effect in regard to a portion of a banking-house 
where that portion was leased out and not used for 
banking purposes; the exemption of the banking-house 
as such was held not to include the portion leased. 
The case of the Bank of Commerce v. E. L. McGorvan, 
6 Lea, 703, contains in effect only the same principle 
as that of the two last cases, being only a little dif- 
ferent in its circumstances. 

On the other side, without referring again to the 
case of The State v. The Union Bank, in 9 Yer., we 
have two cases, one of which in principle and the 
other in its precise circumstances are like the present 
case. The first of these cases, that of EnaUy v. The 
Oity of MemphUj 6 Baxt., 554, decides that where a 
manufacturing company had paid the tax upon its real 
property used for the purposes of its manufacture, it 
was still bound to pay the tax imposed on its share- 
holders, retaining the same out of their dividends, and 
that this was not double taxation. The other case, 
not yet reported, and decided at the last term, was 
that of the South Nashville Street Railroad Co. v. The 
Mayor and City Council of Nashville, The 8th section 
of the act of 1873 is there construed, and the real 
estate used by the company for its corporate purposes 
is held liable to taxation ; the questions made here were 



DECEMBER TERM, 1881. 



411 



£d wards v. The State. 



made there and decided adversely to plaintiffs ; this case 
might have heen rested on these cases without further 
discussion, but the zeal and ingenuity with which the 
counsel for plaintiff priessed his view of the case, have 
induced the court to examine anew the principles upon 
which these cases rest, and to discuss the authorities 
offered from other States. 

Our conclusion is, then, that the judgment of the 
circuit court be in all things affirmed. 



8L411 

131 830 

16L 79 

4pi5&3 

4pi5M 



John Edwards v. The State. 

CRiMiNAli Law, Horse roaring. Selling pools. A sale of a pool in 
this State on a horse race run upon a track outside of the State, is 
gaming. 



FROM DAVIDSON. 



Appeal in error from the Criminal Court of Da- 
vidson county. J. M. Quarles, J. 

W. A. Brien for Edwards. 



Attorney- General Lea for the State. 



412 NASHVILLE: 



Edwardfl. v. The State. 



TuRNEY, J., delivered the opinion of the court. 

The plaintiff in error was presented for gaming 
and convicted. The facts are : The accused sold a 
pool of the value of five dollars on a horse race run 
on the Saratoga track, in the State of New York, 
kept for the purpose, and licensed and taxed by that 
State. The sale was in Davidson county. A pool 
is a bet. 

The judge of the criminal court held this to be a 
violation of our statutes against gaming. We think 
the holding correct. 

The law of the State, legalizing horse racing, is 
intended to encourage the improvement of stock. It 
is intended exclusively for the benefit of the State. 
The State has no such interest in the race stock of 
a sister State as to justify it in making gaming lawful 
within its borders on racing done elsewhere. 

Affirmed. 



DECEMBER TERM, 1881. 413 



Summitt v. The State. 



SuMMiTT V. The State. 

1. Railroads. Rulea and ref/uUUions for depot and other buUdinga. A rail- 

road company may make and enforce by its agents reasonable and 
necessary rules for the transaction of its business, and for the proper 
and orderly management of its depot and other buildings open to the 
public. These rules, however, must be reasonable and such as do not 
unnecessarily infringe upon the rights of the public and others hav- 
ing or carrying on business in connection with railroad traffic and 
travel. 

2. Same. Same. A regulation forbidding hackmen, peddlers, express- 

men and loafers from coming within the passenger depot is reason- 
able. 

FROM DAVIDSON. 



Appeal in error from the Criminal Court of Da- 
vidson county. J. M. Quarles, J. 

T. W. Wrenne for Summitt. 

Attorney-General Lea for the State. 

Freeman, J., delivered the opinion of the court. 

This is an indictment and conviction for an assault 
and battery, but presents a question of some interest, 
not ordinarily found in such cases. 

The defendant is a watchman with police powers, 
at the Nashville & Chattanooga Railroad Depot in the 
city of Nashville. That company has a regulation 
forbidding hackmen, peddlers, expressmen and loafers, 
from coming within the depot building. Placards are 



414 NASHVILLE : 



Summitt v. The State. 



posted in and about the depot anoouncing this fact. 
The proof, however, tends to show that a hackman 
who has a check for luggage of a passenger ' may enter 
the building for this purpose, and also that the pros- 
ecutor in this case, who was a hackman, had such a 
check, and exhibited it. 

It was the duty of the defendant to see that the 
regulations of the company referred to were enforced. 

The proof tends to show that defendant found pros- 
ecutor in the depot, probably at the room provided 
for passengers, endeavoring to induce a party to take 
his hack for the Louisville depot. It is claimed by 
the defendant's witnesses that prosecutor was doing this 
in a noisy manner. The defendant ordered him out 
of the depot, and on his refusal to go, forcibly ejected 
him from the building — some proof going to the fact 
that he struck him a blow with his walking stick. 
The defendant justifies his conduct by virtue of his 
authority to enforce the regulation referred to. 

On this question his Honor, the criminal judge, 
charged the jury substantially : That if the prosecu- 
tor had a check for the baggage of a passenger then 
in the depot, and it was one of the rules of the com- 
pany that the possession of such a check entitled the 
party as a hackman to go into the depot for the bag- 
gage, then he would have the right to go into the 
depot for that /^purpose and remain a reasonable time. 
But that, if from the evidence the prosecutor was 
in the passenger room and not where the baggage 
was, whether he was annoying a passenger or not, the 
defendant had the right, and it was his duty to re- 



DECEMBER TERM, 1881. 415 

Sum mitt v. The State. 

quest him to go out of that particular room, and if 
prosecutor refused after being so requested, the defend- 
ant had the right to use all necessary force to eject 
him from th»t room alone, and in this would not be 
guilty of an assault and battery. But he charged 
further : *' That on this state of facts, defendant would 
only have the right to put the party out of that room, 
and should then have permitted him to have gone to 
the proper place for the baggage; and if instead of 
doing this, he ejected him forcibly, not only from the 
sitting room, but from the depot building, and the 
prosecutor had lawful business in the depot, then de- 
fendant would be liable for this action." 

It is settled law, that a railroad company may 
make and enforce by its agents reasonable and neces- 
sary rules for the transaction of its business, aud for 
the proper and orderly management of its depot and 
other buildings open to the public. These rules, how- 
ever, must be reasonable, and such as do not unne- 
cessarily infringe upon the rights of the public, and 
others having or carrying on business in connection 
with railroad traffic and travel. 

We see nothing from the facts found in this case, 
that renders the regulations of the company under 
consideration obnoxious to objection. We think, how- 
ever, his Honor, the criminal judge, gave a correct 
statement of the law on the facts before him. If it 
was (as is not seriously controverted), the right of a 
hackman under the regulations to go into the depot 
to obtain the luggage of a passenger whose check he 
has, then it could not be that he had forfeited this 



416 NASHVILLE: 



Sum mitt v. The State. 



right, at the will of the watchman, as a penalty for 
departing from the strict line of his right, by going 
into the sitting room for passengers. In doing this, 
he was liable to be ordered out of this unauthorized 
place, and if necessary ejected from it. But it does 
not follow, that in the exercise of this right on the 
part of the watchman, he could go further and deprive 
the hackman of that which was his right, that is to 
procure the luggage for which he had a check. This 
is not to exercise a right on the part of the watch- 
man, but to go beyond that and enforce a penalty, or 
forfeiture of another right, because of a violation of 
the rule of the company by a departure from his 
proper direction, or going into an unauthorized place 
temporarily. 

All reasonable rules should be enforced and upheld 
by the law in favor of railroad companies ; but at the 
same time, it is equally proper to restrict their agents 
and officials to the strict line of duty in carrying them 
out, in order to protect the public from arbitrary con- 
duct on their part in the exercise of their legal rights. 
The watchman had the right to see that the proper 
regulation was not violated. When that violation was 
corrected, then the right of the other party to get the 
luggage was one of which he could not be deprived 
under the facts in this case — and such is the theory 
of his Honor's charge. In this we think he v/aa 
correct, and affirm the judgment. 



DECEMBER TERM, 1881. 417 



Holcomb V. The State. 



John R. Holcomb v. The State. 



1. CRi»nNAL [Law. Change of venue. The application for change of 

venue, is addressed to the sound discretion oE the court, and after the 
defendant has introduced his affidavits to sustain his motion, and the 
judge has satisfied himself by an examination of by-standers, it is not 
error for the court to refuse to hear any further proof offered by de- 
fendants. 

2. Same. Severance. New trial. Where two defendants have been jointly 

indicted, and a severance denied, and they have been prosecuted in 
good faith upon reasonable grounds, and not merely for the purpose 
of preventing one from being a witness for the other, and one is ac- 
quitted, and the other is convicted, the latter will not necessarily 
be entitled to a new trial for the purppse of obtaining the evidence of 
his co-defendant, even though it appear that the latter had full 
knowledge of the facts. If the conviction be well sustained, and the 
presiding judge is satisfied with the result, it w^ill not constitute re- 
versible error, even if he, on this ground, refuse a new trial, other- 
wise, a severance must be had, or a new trial, if one of the parties are 
acquitted, in every case where the one acquitted has knowledge of 
material facts. 



FROM MAURY. 



Appeal in error from the Circuit Court of Maury 
county. W. S. McLemore, J. 

Lee Bullock, W. J. Webster and J. V. Wright 
for Holcomb. 

H. P. FiGUERS, E. H. Hatcher and Attorney- 
Ggneral Lea for the State. 
27— VOL. 8. 



8L417 
lOL 675 
UL 7S1 



418 NASHVILLE: 



Holcomb V. The State. 



McFarland, J., delivered the opinion of the court. 

The prisoner and W. C. Porter were jointly in- 
dicted for the murder of M. E. Carter. Porter was 
acquitted, and the prisoner convicted of murder in the 
second degree and sentenced to twenty years imprison- 
ment in the penitentiary. A new trial being refused, 
he has appealed in error to this court. 

The first error assigned is, that the court erred in 
refusing to change the venue upon the application of 
the defendants, supported by the affidavits of five other 
persons, showing undue excitement and prejudice against 
the defendant in Maury county, where the ojffense was 
committed, and where the cause was tried. After the 
affidavits were introduced, the presiding judge examined 
a number of by-standers and announced that the ap- 
plication would be refused, whereupon the defentant's 
counsel proposed to call other by-standers, which the 
court declined to allow. 

The application for a change of venue is addressed 
to the sound discretion of the presiding judge, and it 
requires a strong case of abuse of discretion to author- 
ize this court to reverse his action: Potrer v. The 
State, 3 Lea, 496, citing 1 Swan, 325; 3 Cold., 355; 
11 Heisk., 223. It was held in the first named 
case that it was not an improper practice for the 
judge to call by-standers as witnesses in reference to 
the alleged excitement; nor do we think it was error 
for the judge to refuse to allow defendants to call 
other by standers on the question. They had the right 
to introduce the affidavit of any number of persons 



DECEMBER TERM, 1881. 419 

Holcomb V. The State. 

■ — ■■ - ■■■■ »' — 

they might choose, in the first instance, afterwards, it 
was in the discretion of the court as to whether they 
might call other witnesses. 

The witnesses examined by the judge shows that 
there was excitement against the defendants, in portions 
of the county ; in other portions of the county there 
was not. We judicially know that the county of 
Maury is very large and populous. There is nothing 
in this record to indicate that from the prominence of 
the parties, or other cause, the excitement and preju- 
dice against the defendants was likely to extend to the 
entire county, or over so much of it, as to prevent 
the obtaining of an impartial jury. The inconvenience 
resulting from a change of venue in a case like this, 
where there are a large number of witnesses, and the 
embarrassment it creates in the proper enforcement of 
the criminal law, makes it improper to grant the change 
unless it be really necessary for the purpose of ob- 
taining an impartial jury and a fair trial. We think 
there is no ground to reverse the action of the court 
below on this question. 

Second, it is assigned as error that the judge erred 
in holding three jurors competent — forcing the defend- 
ant to challenge them — when said jurors admitted on 
their voire dire that they had an opinion, that the 
defendant Porter was connected with the killing, al- 
though they had no opinion as to the guilt or inno- 
cence of either of the defendants. It is a sufficient 
answer to say, that Porter was acquitted, and the pris- 
oner selected other jurors without exhausting his per- 
emptory challenges. It is well settled, that unless 



420 NASHVILLE: 



Holoomb V. The State. 



the prisoner is forced to accept other jurors after ex- 
hausting his challenges, the question as to the compe- 
tency of jurors challenged, cannot be made: Preswood 
V. The State, 3 Heis., 468, and authorities there cited. 
Third, it is insisted the judge erred in his charge to 
the jury. The difficulty began in a drinking saloon. 
The prisoner fired two shots in the saloon, each shot 
inflicting a mortal wound on the deceased, who there- 
upon fied out at the back door of the saloon and was 
pursued and fired at by the prisoner, who finally over- 
took deceased, and when within a few feet of him 
shot him through the head, from which he died in a 
few moments. The theory of the defense was, that 
the deceased had made a deadly assault upon the pris- 
oner in the saloon with a pistol, and the first shot 
was fired by the prisoner in self-defense, and that he 
had the right to pursue the deceased until the danger 
was over, and in determining this, the prisoner had the 
right to act upon what appeared to him to be a well- 
grounded necessity to pursue and slay his adversary. 

After charging correctly upon the law of self- 
defense, and the right of the prisoner to act upon well- 
founded apprehensions that he was in danger of his 
life or bodily harm, and telling the jury that the 
right of self-defense exists and continues so long as 
the proof shows that the danger is present, or honestly 
and upon reasonable grounds believed to be so, and 
also instructing them that there are cases where the 
assault is made upon a person, so fierce, sudden and 
deadly, that he may not, in safety, cease his repel- 
ing force, even when the assailant begins to retreat, 



DECEMBER TERM, 1881. 421 

Holcomb V. The State. 

in which case he may follow his assailant until all 
reasonable danger has ceased, even to the taking of 
the life of his assailant. The portion of the charge 
excepted to, must be taken in conection with the fore- 
going. It is as follows: "The court will say to you, 
however, that even if you think that Carter com- 
menced the attack, and that after he had been shot, 
he fled from the house and placed the wall of the 
house between himself and Holcomb, if then, Holcomb, 
with the wall of the house between him and Carter, 
(if the proof show that Carter was still fleeing), chose 
to go out of the door and pursue him, and shoot him 
to death, he cannot avail himself of the plea of self- 
defense.^' 

The objection made to this is, that it was invading 
the province of the jury — assuming that if the facts 
stated were proven, then there was no necessity for 
the prisoner pursuing and slaying the deceased; where- 
as, it should have been left to the jury to say whether 
the prisoner honestly so believed, and defendant's coun- 
sel submitted special requests in writing, embodying 
their view of the law on this point, which the judge 
refused to give. 

We have seen that the general principle was cor- 
rectly stated in the first instance. As applied to the 
facts of this case we do not think there was anything 
erroneous or misleading in the charge given, or any- 
thing that required more specific instructions. The 
judge may state the facts and declare the law; he 
would have been justifiable ii:i stating the facts, even 
more strongly against the prisoner, and this is really 



422 NASHVILLE: 



Holcomb V. The State. 



the only just criticism to this part of the charge. An- 
other criticism made on the charge, is this, that the 
jury were told to sustain the plea of self-defense, it 
must appear that the deadly intent existed upon the 
part of the deceased at the time he assaulted the pris- 
onerf It is insisted that this excludes the idea that 
the prisoner might act upon danger of great bodily 
harm. The charge must, however, be taken as a whole, 
and it is so fully explained in other portions of it, 
that there is no reasonable ground to suppose that the 
jury were misled. 

Againy it is insisted that the court erred in refus- 
ing to grant a new trial upon the aflBdavit of Porter. 
Porter, as we have seen, was acquitted. Before the 
hearing the defendants filed a joint affidavit for a sev- 
erance — in which Porter stated that he would be pre- 
judiced by a joint trial with the prisoner, on account 
of the prisoner's character for violence, as well as for 
other reasons, and the prisoner insisted that he would 
need the evidence of Porter, who was the onlv witness 
who saw the beginning of the difficulty. After the 
trial, the affidavit of Porter was introduced in support 
of a motion for a new trial, in which he details the 
fects in support of the theory of the defense. 

The granting or refusing a severance was a matter 
addressed to the discretion of the presiding judge. If, 
at the conclusion of the testimony, it had appeared 
that there was no evidence again t Porter, the judge 
would, upon motion of the defendants, have directed 
the jury to return a verdict as to him, and then he 
might at once have been introduced as a witness for 



DECEMBER TERM, 1881. 423 

Holcomb r. The State. 

the prisoner. Where two have been thus jointly in- 
dicted and prosecuted in good faith upon reasonable 
grounds, and not merely for the purpose of prevent- 
ing one from being a witness for the other, and one 
is acquitted and the other convicted, the latter will 
not necessarily be entitled to a new trial for the pur- 
pose of obtaining the evidence of his co-defendant, 
although it appears that the latter had full knowledge 
of the facts. Such a rule would, in any case, where 
two have been tried and one acquitted, result in a 
new trial necessarily, if it can be shown that the per- 
son acquitted was cognizant of facts material to the 
case, although the conviction was properly obtained 
and the proceeding free from error. We do not mean 
to say, that in a proper case, a new trial may not be 
granted on these grounds. If the conviction be well 
sustained, and the presiding judgfe is satisfied with the 
result, it will not constitute a reversible error, if he, 
on this ground, refuse a new trial. Otherwise, a sev- 
erance must be had, or a new trial, if one of the 
parties be acquitted, in every case where the on6 ac- 
quitted has knowledge of any material fact. Although 
Porter was acquitted, there was evidence against him. 
Besides, it is by no means clear, that even if Porter's 
afBdavit be looked to as part of the evidence, the 
verdict is not well sustained. It appears that the case 
was elaborately examined in the court below, the trial 
occupying more than [ten days. The deceased had 
shortly before killed a brother of the prisoner, under 
what circumstances, does not appear. On the day the 
present homicide occurred, the deceased was in Colum- 



424 NASHVILLE : 



Holcomb r. The State. 

1- 



bia partially intoxicated^ and spent a part of his time 
with Porter, who was a brother-in-law of the prisoner. 
Late in the afternoon the prisoner and the deceased 
met in a saloon in which Porter was a clerk. The 
deceased had been in the saloon two or three times 
shortly previous, but had not seen the prisoner, who, 
at the time, was in adjoining room. The theory of 
the State is, that he was concealed in the room, and 
that the deceased was decoyed into the saloon by Por- 
ter, by a previous arrangement between him and the 
prisoner, and that the attack upon the deceased was 
without provocation, and premeditated. The theory of 
the defense is, that the deceased was hunting the pris- 
oner with a deadly purpose, and began the attack upon 
him with a pistol, and the prisoner acted in self- 
defense. 

There is some conflict in the testimony. The jury, 
however, have passed upon this, and we must accept 
their verdict as settling the question of the credibility 
of the witnesses, coming before us as it does, with the 
endorsement of the presiding judge, who refused to 
grant a new trial. 

There is certainly no preponderance against the ver- 
dict. However the conflict began, the circumstances 
do not indicate that the first shots were fired in nec- 
essary self-defense; and it further fully appears, that 
by these shots, the deceased was mortally wounded 
and wholly disabled from further combat, and this, the 
prisoner must have known, still he. pursued the de- 
ceased in this helpless and defenseless condition, and 
shot him dead. Nor do we think there is 'anything 



DECEMBER TERM, 1881. 425 

Holcomb V. The State. 

to show that this was done under such passion pro- 
duced by adequate legal provocation as to reduce the 
killing to manslaughter. 

Let the judgment be affirmed. 



PETITION TO REHEAR. 

The petition to rehear presents a question upon 
which the argument in support of it is plausible, that 
is to say, the right of the defendant to a new trial 
in order to have the benefit of the testimony of W, 
C. Porter. They] were jointly indicted. They applied 
for a severance, upon the ground so far as the pres- 
ent defendant is concerned, that he would want the 
benefit of Porter's testimony, he being the only per- 
son who saw the beginning of the fatal recounter, and 
that he would prove facts material to Holcomb's de- 
fense, , which he could not prove by any one else. 
The court refused the severance. It is settled that 
this is a matter . within the discretion of the judge : 
Robinson v. The State, 1 Lea, 673. And the court 
will not reverse the discretion of the trial judge, un- 
less it appear that his discretion has b^en abused. 

As Porter has been acquitted, there can be no 
ground now to reverse the action of the court refusing 
a severance. They being jointly tried. Porter was 
not a competent witness, and was not offered, and in 

the trial, therefore, there was, in this respect, no 
error. 



426 NASHVILLE : 



Holcomb V. The State. 



But it is argued that the acquittal of Porter 
makes him a competent witness, and as the defendant 
has been, by the joint trial, deprived of Porter^s tes- 
timony, he ought to have a new trial to obtain the 
benefit of it. That by compelling him to submit to 
a joint trial with Porter, who has been adjudged not 
to have been guilty at all, he has been wrongfully 
deprived of testimony to which he was clearly entitled. 

To sustain this argument would result in requiring 
a severance in every case where it is applied for, or 
a new trial, if one be convicted and the other ac- 
quitted, provided the one acquitted have any knowl- 
edge of the facts. 

Where there is no evidence to criminate one, or 
he is indicted by mistake, or for the purpose of de- 
priving the other of his testimony, the practice, it is 
said, is to direct his discharge so that he may be a 
witness for the other. Or where there is but little 
testimony as to the one, his case should first be sub- 
mitted to the jury, and if found not guilty, he may 
be introduced for the other : 1 Arch., 476, and not^s. 
We find no authority holding that the one convicted is 
entitled to a new trial as a matter of right, in order to 
have the benefit of the testimony of the one acquitted. 
In a proper case the presiding judge might, no doubt, 
grant a new trial on this ground, but where the case 
is well made out, this court will not reverse, if he 
refuse. 

Petition dismissed. 



DECEMBER TERM, 1881. 427 



MuUoy V. Hal road. 



E. F. MuLLOY V. Nashville & Decatur Railroad 

Co., and Davidson County. 

1. BaUroads. Charters. Amendments. The Nashville & Chattanooga 

Railroad Company was incorporated by an act of the LegislatiTre, 
and afterwards the charter was amended by an act passed January, 
1848, as follows : " That said comi>any be required to estimate and 
pay, semi-annually, to the several holders thereof, a sum equal to six 
per cent, per annum on the capital stock of said company, actually 
paid in, to l>e charged to the cost of construction, pi^omdedj a majority 
of the stockholdei*s at their first regular meeting agree thereto." The 
amendment was accepted. In 1852 the Tennessee & Alabama Rail- 
road Company was chartered ; having " all the rightf:, powers and 
privileges, and subject to all the liabilities and restrictions conferred 
and imposed upon the charter of the Nashville & Chattanooga 
Railroad Company, and all the various amendments thereto." Heldj 
that the amendment to the charter of the Nashville & Chattanooga 
Railroad Comj)any, by acceptance, became a part of the charter, 
and thereby became a part of the organic law of th^ Tennessee & 
Alabama Railroad Comjjany, and did not require the action of a 
majority of its stockholders to accept it at its first regular meeting. 

2. Same. Same. Same. By an act of the Legislature, February 14, 

1856, it was provided "that the Tennessee & Alabama Railroad Com- 
pany, * * shall, by and with he consent of the county court 
of Davidson county, be required to issue stock to the tax-payers of 
said county, for the amount of the annual tax which has already, and 
may hereafter be paid by said tiix-payers, to provide for the interest 
on the bonds issued by said county for said Railroad Company, on 
presentation of the tax receipts; said tax recei[)ts .shall be negotiable 
by endorsements, and no stock shall be issued for a less amount than 
one share, provided said Railroad Company shall not be required to 
issue stock for said tax receipts until the first dividend is ready to be 
made, at which time, or any time thereafter, shall issue the same." 
The county court of Davidson gave its assent, and thereupon, ui)on a 
meeting of the stockholders of the said Railroad Company, it was 
"Resolved that this Company accejit, as an amendment to its charter, 
the act of the General Assemblv of the State of Tennessee, entitled 
"an act for the benefit of the railroad tax-payers of Davidson coun- 
ty," passed February 14, 1856, provided this Company shall not be 



428 NASHVILLE : 



Mulloy v. Railroad. 



bound to issue any ntoek to the tax- payers upon the presentation of 
tax receipts, of any tax imposed after the declaration of the divi- 
idend which shall be made by this Company ; and providedy further, 
that said stock shall not be issued but by and with the consent of 
the county court of Davidson countv." Held, that the Railroad 
Company did not accept the contract contained in the act. The ac- 
ceptance is qualified by a proviso introducing a new condition to the 
contract, not authorized by the act of the Legislature. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of David- 
son county. W. P. Hickerson, Sp. J. 

J. P. Helms for Mulloy. 

Demosss & Malone and T. L. Dodd for Davidson 
county. 

Ed. Baxter for Railroad Company. 

Freeman, J., delivered the opinion of the court. 

This is an application for a mandamus, filed Sep- 
tember 20, 1875, in the circuit court of Davidson 
county, to compel the issuance of stock in the defend- 
ant's company, to plaintiff, on certificates and tax re- 
ceipts, purporting to evidence the fact of payment of 
taxes assessed . by Davidson county, to pay interest on 
certain bonds of the county issued in payment for sub- 
scription of stock in the Tennessee & Alabama Rail- 
road Company. The facts on which the questions to 
be decided rest, are substantially as follows: 

The Tennessee & Alabama Railroad Company was 
chartered by an act of the Legislature, February 23, 
1852, but the terms of the act simply created the 



DECEMBER TERM, 1881. 429^ 



Mulloy t;. Eailroad. 



body corporate, giving its name and object, and added, 
^and said company shall have all the rights, powers 
and privileges, and be subject to all the liabilities and 
restrictions conferred and imposed upon the charter of 
the Nashville & Chattanooga Railroad Company, and 
all the various amendments, etc., thereto. 

It was further provided, that the capital stock of 
the company might be increased or decreased in the 
discretion of the company. By a subsequent act of 
the same session of the Legislature, the county of Da- 
vidson was authorized to subscribe for stock to the 
road, and to issue bonds in payment for such stock 
subscribed, after submitting the question to a vote of 
the people, the bonds to run not less than ten nor more 
than twenty years — to bear six per cent, interest — and 
made payable to the Railroad Company. It was made 
the duty of the county court, after the issuance of 
such bonds, to lay and collect an annual tax to meet 
the accruing interest,- and also, for the purpose of 
raising a sinking fund for the ultimate payment of 
the* bonds. 

By the 16th section of the act, it was provided 
that the stock so taken, should belong to the county, 
and the dividends accruing on the same, "shall consti- 
tute a fund for county purposes, and may, from time 
to time, be appropriated as a majority of the justices 
of the peace for said county, may, in county court, 
direct. In pursuance of the authority thus conferred, 
the county of Davidson subscribed for $200,000 of 
stock in this company, and her bonds were issued to 
the company; a tax has been regularly levied since. 



430 NASHVILLE : 



Mil Hoy V. Kalroad. 



and collected from the people to meet the interest as 
required. • 

By an act passed January 21, 1848, the charter of 
the Nashville & Chattanooga Company was so amended 
*Hhat said company be required to estimate and pay 
semi-annually, to the several holders thereof a sum 
equal to six per cent, per annum, on the capital stock 
of said company actually paid in, to be charged to the 
cost of construction, provided a majority of the stock- 
holders, at their first regular meeting, agree thereto." 
It is conceded that this amendment was accepted by 
the Nashville & Chattanooga Company, and had be- 
come a part of their charter before the act of 1852 
was passed, by which the defendant company was in- 
corporated. 

The first question presented in this case is, whether 
this amendment of 1848, became a part of the organic 
law of the Tennessee & Alabama Company, by virtue 
of the act incorporating said company, or whether it 
required the action of a majority of its stockholders 
to accept it at the first regular meeting? 

An able and ingenious argument is made to sustain 
the latter view. We do not think this contention is 
sound. The Tennessee & Alabama Company was in- 
corporated by the act of 1852, and all its privileges 
and powers, with its liabilities were intended then to 
be fixed, and these were what was then found em- 
bodied in the charter of the Nashville ct Chattanooga 
Railroad Company, *^and all the various amendments, 
etc., thereto." The company was organized under this 
charter, and by such organization, has accepted the 



DECEMBER TERM, 1881. 431 

Mulloy V. Kailroad. 

charter as it stood. In &ct, it could not have thus 
organized, and rejected a part of the charter of the 
Nashville & Chattanooga Company, or any amendment 
thereto. The charter granted them did not contain 
this act of 1848, as an amendment to the charter of 
the Tennessee & Alabama Company, subject to accept- 
ance or rejection, as when proposed to the Nashville 
-& Chattanooga Company. The whole charter, made 
up of the original and amendments, was tendered by 
the Legislature to this company, and by organizing 
under it, accepted as a whole. The other company 
had an option, because already it existed as a completed 
organism. When accepted, however, it became a part 
and .parcel of the organic law of that company — and 
then in this form the whole charter was made the or- 
ganic law of the present defendant corporation. We 
conclude, beyond question, that this is the fair result 
of the facts as presented, and the obligations of this 
amendment of 1848, were binding on the company: 
See Woodfolk v. Union Bank, 3 Cold., 499. 

It follows, that as a part of the fundamental law 
of the defendant corporation, the company was required 
to estimate and pay a semi annual dividend to the sev- 
eral stockholders thereof, equal to six pir cent, per 
annum on the capital stock actually paid in, to be 
charged to construction account. 

This provision became a part of the contract under 
which all stock was subscribed and paid in said com- 
pany, of which the stockholder could not be deprived, 
except by his consent legally expressed. 

The county of Davidson having P"bscribed for $200,- 



432 NASHVILLE: 



Mulloy V, Kailroad. 



000 of stock in the company, and paid for the same 
in her bonds^ was entitled to, and had her stock is- 
sued as was her right. It was stock paid in within 
the meaning of this act, though not paid in money. 
The company was authorized to receive pay for such 
stock from the county in the bonds, and they were 
accepted as a mode of payment. The qounty then be- 
came entitled to the six per cent, interest on her stock, 
no more appearing, as between her and the company. 
But it was not intended, nor is it so declared, that 
this sum shall discharge or lessen the stock of the 
county, nor in any way be a credit on the same, or 
in place of stock to the amount thus required to be 
paid. It is, to sav the least of it, a provision, that 
with the experience and superior knowledge of the 
practical workings, and results, of such enterprises, 
would never be inserted, or if offered would probably 
never be accepted by any company to be organized 
to build a railroad at the present day. It would, 
however, be enforced, according to its fair meaning, as 
was understood by the parties to the contract, in a 
proper case. It was not confined to subscribers pay- 
ing stock in bonds, as counties and municipal corpora^ 
lions, and therefore, it had no reference or relation to 
the fact, that the bonds of the county, issued to the 
railroad, bore interest till maturity, nor was it in- 
tended to reimburse the county for this interest. The 
county had its stock. The company had its bonds, 
as capital stock, to be negotiated, if so desired, for 
means to build its road, and thus the contract was ex- 
ecuted, and complete as between the parties. By this, 



DECEMBER TERM, 1881. 433 

Mullov V. Bail road. ■" 

their respective rights and liabilities were then fixed. 
Thus the rights of the parties stood, until February 
14, 1856, when the Legislature passed an act, which 
provided "that the Tennessee & Alabama Railroad Com- 
pany, the Northwestern Railroad Company, and the 
Edgefield & Kentucky Railroad Company, shall, by and 
with the consent of the county court of Davidson coun- 
ty, be required to issue stock to the tax-payers of 
said county, for the amount of the annual tax which 
has already, and may hereafter be paid, by siiid tax- 
payers, to provide for the interest on the bonds issued 
by said county, for said railroads, on presentation of 

the tax receipts for the respective railroads; said tax 
receipts shall be negotiable by endorsement, and no 
stock shall be issued for a less amount than one share, 
provided said Railroad Company shall not be required 
to issue stock for said tax receipts imtil the first div- 
idend is ready to be made, at which time, or at any 
time thereafter, shall issue the stock." 

It is difficult to see what reason there could be 
for the passage of this act, from its terms taken alone. 
It certainly would be more difficult to see a reason 
for the Railroad Company desiring, or even accepting 
it, as an amendment to its charter. The county owned 
its stock, as we have said, and had issu» d its bonds 
some months before, or longer, in payment for the 
stock. These bonds were the debt of the coun:v, and 
bore interest at the rate of six per cent, per annum, 
and for this the county was liable, but the Railroad 
Company, as between it and the county, was in no 

wise liable to the county for the payment of this in- 
28— VOL. 8. 



434 NASHVILLE: 



Mulloy V. Kalroad. 



terest. In fact, by the terms of the act of Februa- 
ry 28, 1852, under which Davidson county was au- 
thorized to take the stock, and issue the bonds, the 
bonds were to be payable to the company, so that at 
first the indebtedness was directly to the company, and 
to bear six per cent, interest. The idea of the cred- 
itor holding the bond of his debtor bearing interest, 
being in any way made liable to pay to his debtor, 
or to any one by his consent, interest on a debt due 
to himself, is not conceivable in the nature of the 
thing; yet strangely, we have in this statute such a 
requirement in substance, the payment, however, to be 
made in stock of the company to be issued to the 
tax-payers, who had paid his tax to the county, to 
be appropriated to the discharge of the interest due on 
the county bonds. 

It is true it had been provided, that the dividends 
accruing to the county, on the stock taken, were to 
belong to the county, " and to constitute a , fund for 
county purposes," and might be appropriated as the 
county court might direct: Section 16 of act February 
28, 1852. It is also true, that by the amendment of 
1848, the company was bound to pay six per cent, 
per annum on capital stock actually paid in, but it is 
not hinted in this act of 1856, that this stock shall 
be in discharge of the six per cent, nor that it shall 
be in lieu of, or in the place of dividends, nor be a 
credit on the stock owned by the county, or come out 
of the same, as held by the circuit judge. It is only 
provided, "said Railroad Company shall not be required 
to issue stock for the tax receipts, until the first div- 



DECEMBER TERM, 1881. 435 



Mullov V. Balroad. 



idend is ready to be made, at which time, or any time 
thereafter, shall issue the stock/* This only postponed 
the time of issuing the stock till declaration of divi- 
dends^ at or after which . time the issue might be de- 
manded. 

It is clear this enactment imposed the obligations 
of a contract, or definite liability on the company by 
its terms, to issue to the tax payer the amount in 
stock in the company, which he had paid in taxes 
assessed to pay the interest on Davidson county's in- 
debtedness incurred by issuance of her bonds, in pay- 
ment for her stock. We need do no more than say, 
that this could not be done, except by the assent of 
the company. A contract requires the assent of both 
the party benefitted and the party upon whom an ob- 
ligation is imposed by it. The company, though only 
a legal person, could not have such a contract imposed 
upon it, except by its assent legally given. 

This act does not purport, on its face, to be an 
amendment to the charter of the company. Its title 
is "an act for the benefit of the railroad tax-payers 
of Davidson county." 

That it was understood by the Legislature, that 
this arrangement required the consent of the company, 
is clearly seen from the first section of the act <Jf 
February 26, 1856, which provided that the several 
railroad companies incorporated in this State might in- 
crease their capital stock to the amount of interest 
which might be collected to pay interest on county 
bonds paid in discharge of county stock, "and when 
any company shall agree to such an increase of its cap- 



436 NASHVILLE : 



Mulloy v. Railroad. 



ital stock/^ the collectors of railroad tax to pay the 
interest aforesaid^ to execute to each tax- payer a sep- 
arate receipt for the railroad tax, setting forth the 
company in which it is paid, and said receipts were to 
pass by endorsement, and when an amount equal to a 
share of stock was presented, a certificate therefor was 
to be issued. 

It is seen the company was to agree to the in- 
crease of its capital, before the certificates were to be 
issued. How the capital stock was to be increased in 
fact, by the process suggested, is not very apparent, 
though we can see how the shares of stock would be. 

In this view of the case, the question is vital to 
the rights of the complainant in this case, as the as- 
sumed owner of the tax certificates, representing taxes 
paid by citizens of Davidson county, whether the com- 
pany has accepted or agreed to the requirement of the 
act of February 14, 1856, requiring this, with other 
companies, with the consent of the county court, to 
issue stock to the tax-payers, who had paid taxes to 
meet the interest on the bonds issued by the county 
for said railroads. 

It appears from the record that the county court 
gave its assent (as well it might), that the tax-payer 
might receive the stock, and ordered the issuance of 
certificates of the amount of such tax paid by each 
tax-payer. It also appointed the Hon. Edwin H. 
Ewing and Judge East, with Judge Whitworth, to 
represent the county in a meeting of the stockholders 
to be held at Franklin, to procure an acceptance of 
the proposed obligation on the part of the company. 



DECEMBER TERM, 1881. 437 

^ ■ ■ ■ ■_ 

Mulloy V. Bailroad. 

An acceptance of the act of 1856, with a priviso, 
however, was procured, by the following resolution: 

Resolved, That this company accept, . as an amend- 
ment to its charter, the apt of the General Assembly 
of the State of Tennessee, entitled "an act for the 
benefit of the railroad tax- payers of Davidson county,*' 
passed Febauary 14, 1856; provided, this company 
shall not be bound to issue any stock to the tax- 
payers upon the presentation of tax receipts for any 
tax imposed after the declaration of the dividend, which 
shall be made by this company, and provided further, 
that said stock shall not be issued, but by and with 
the consent of the county court of Davidson county. 

Conceding this resolution is shown to have been 
accepted, and bind the company, so far as the form 
of its adoption is concerned, it cannot be questioned, 
we think, that it is not the contract proposed by the 
Legislature in the act of 1856. The act is accepted 
in terms, by the first part of the resolution, but the 
acceptance is qualified by a proviso, that introduces a 
new term to the contract, not provided for by the 
act. In other words, the resolution accepts the act, 
but not the contract contained in the act, but pre- 
sented a diflFerent one to be accepted by the county of 
Davidson, which seems to have been agreed to by the 
county court. The company accepted the act, but re- 
jected the contract' proposed in it. This whole pro- 
ceeding is based on the idea and theory that the com- 
pany was bound by acceptance of the act of Februa- 
ry 14, 1856, and this we have seen has not been 
done by the company, but only an acceptance, with 



438 NASHVILLE: 



8L438 
111 103 



81438 
110 406 



Railroad Company v, Garrett. 



substantially a Dew proposition not authorized by the 
act of the Legislature, and so far as we can see, 
having no authority in law, whatever, to warrant it. 
Certainly on the facts of th'e case, the issuance of this 
stock to the tax- payers, would be a mere gratuity on 
the part of the company, and we do not suppose it 
would be seriously contended that such an undertaking 
could be enforced in a proceeding by mandamus— or 
probably by any other. 

The result is, that the petition for mandamiLS in 
favor of complainant as a tax-payer, is dismissed, the 
decree of the court below being reversed with costs. 

McFarland, J.., said: 

I concur in this opinion, and would, upon other 
grounds, reach the same conclusion. 



Louisville & Nashville Railroad Co. v. Garrett. 

1. Railroads. Oai^ier. Passenger. Failure to pay fare. Offer of paymen 
by another before eviction. A paasenger who gets upon the care of a 
railroad company in good faith, in ignorance of the fact ihat a tax 
certificate would not pay his fare, having no intention to impose upon 
the carrier, cannot be treated as a mere trespasser, but on failure or 
refusal to pay his fare, after request and after reasonable opportunity 
allowed to comply, he may be ejected or put off the cars by the con- 
ductor, but if before eviction another person offer to pay the fare, the 
carrier is bound to receive the fare and convey the passenger. 



DECEMBER TERM, 1881. 439 

Railroad Company v, Garrett. 

2. Same. Same, Punitive damages. Punitive damages may be given 

where the act done, was in the strict line of the duty of the conductor, 
but done under a Rtate of facts not justifying the act, or done in a 
wrongful or careless manner to the injury of plaintiff. 

3. Pleadings and Practice. New trial. Remittitur. Conditional Upon 

a motion for a new trial, the trial judge stated he thought the dam- 
ages too high and would recjuire a remittitur^ if the defendant would 
abide the judgment and not appeal, to which defendant refused to 
agree, therefore he allowed the judgment to stand. Such practice is 
reprehensible. 



FROM DAVIDSON. 

Appeal in error from the Law Court of Davidson 
county. J. C. Guild, J. 

Ed. Baxter and Smith & Allison for Railroad Co. 

Bate & Williams for Garrett. 

Freeman, J., delivered the opinion of the oourt. 

This action is brought to recover damages for be- 
ing '' wrongfully, wantonly and maliciously ejected from 
defendant's cars, whereby the party was greatly injured,'^ 
etc., as appears by the first count of the declaration. 
We need not consider any question arising on the 
second count, averring the tender of a tax receipt in 
payment of the fare, as the circuit judge ruled in favor 
of the defendant on that count, holding the tender not 
good, and the verdict of the jury is evidently based 
on the first count alone. 

A preliminary question is presented as to exceptions 
taken to reading the deposition of Sandy Barnes, which 
was offered by the plaintiffs as testimony in the case. 
The first exception i«, because in the caption of the 



440 NASHVILLE: 



Railroad Company v. Garrett. 



deposilioa it appears that it was tuken in a case pend- 
ing in " the Law Court of Davidson county, Tennessee," 
when in fact the title of the court is the " Law Court 
of Nashville." We need only say, that this objection 
is one that "sticks in the bark." The Law Court of 
Nashville is a law court, and the only one in the 
county of Davidson. There is nothing in this, nor 
is there anything in the other objection, that it does 
not appear from the caption or deposition itself, whether 
the plaintiff or defendant or counsel were present. In 
other words, nothing is said on this subject. We do 
not think this in any way affects the deposition. Be- 
ing taken on interrogatories filed, the inference is that 
they were filed to obviate the necessity of counsel 
being present; nor do we see that it would have ef- 
fected the compe^^ency of the deposition, if these parties 
had been merely present — it being otherwise regular. 
The caption and certificates substantially conform to 
the requirements of the statute, and that is what is 
required by sec. 3848 of the Code. 

The real questions in the case, however, arise on 
the charge of his Honor, the circuit judge, on two 
propositions. First, as to the offer to pay the fare 
by a third party when demanded by the conductor, for 
which the plaintiff was put off the train ; and, second, 
on the subject of vindictive or punitive damages. 

A brief summary of the facts will be suflBcient to 
present these questions. About the 10th of August, 
1871, plaintiff got on the train in Edgefield, near the 
city of Nashville, to go to Gallatin, in an adjoining 
county. He had no money, but had a certificate of 



DECEMBER TERM, 1881. 441 

I I - -■■ 

Ballroad Company v, Garrett. 

payment of a tax to the Davidson county tax collector, 
of a tax levied for the benefit of the defendant rail- 
road company. This tax certificate was for some cents 
more than the fare'. The testimony is uncontra- 
dicted, and no suspicion thrown over its truthful- 
nesS; that the plaintiff in good faith believed this 
certificate would be received in payment of his fare. 
He had travelled over the Edgefield & Kentucky road, 
and paid his fare with like certificates. He swears 
positively that he did not get ^on the cars with the 
purpose of making a case to test the question of the 
liability of the road to take such certificates^ and his 
statements are corroborated by the fact that he was 
poor, had probably but this one certificate on the road, 
and was not likely to have been a mai to have en- 
gaged in such litigation. 

There was no ticket office where he got on the 
train^ that he might have tested whether his certificate 
would be received before going on the train, but it 
was the customary point for passengers from Edgefield 
to get on trains. 

Afler going over two miles, the conductor came 
into the car where he was, collecting fare of passen- 
gers and taking up tickets. When he reached plain-: 
tiff, he tendered him the tax certificate, which the 
conductor refused, saying to him he must pay $1.10, 
the fare, or he would put him off the train. He 
told him he had no money, and that he was sick, and 
urged him to take him to the next station, a few 
miles on, where he could get the money from friends 
and pay him. The conductor then took hold of him, 



442 NASHVILLE: 



Railroad Company r. Garrett. 



either by the coat collar or arm, and walking rapidly 
with him along the car to the door — after ringing the 
bell to stop the train — as he opened the door a pas- 
senger, as he says, ''from motives of humanity," said 
to the conductor ^ Met him go back, I will pay his fare." 
The weight of the proof is, that the conductor replied 
it is too late, and passed on to the platform, leading 
or having plaintiff in front of him. As plaintiff got 
on the steps the train jerked and he fell off on some 
loose rocks, slightly hurting his hand and giving him 
something of a shock, though doing him no serious 
injury. 

The plaintiff was upwards of sixty years old and 
very feeble, while the conductor was a large, stout, 
robust man. We may assume the fact to be that the 
conductor heard the proposition of Williams to pay 
the fare, not only from the fact that witnesses say it 
was spoken loud enough to be heard over the car, 
and was so heard by several farther from the speaker 
than he was. It was addressed to him, and therefore 
more likely to be heard by him. But what makes 
this a conclusive assumption is, that he was present 
in court, summoned as a witness, and was not exam- 
ined by defendant to contradict any statement of the 
facts as given by the plaintiff or his witnesses. 

From this proof we gather, that the jury were 
warranted in finding that the plaintiff was rudely seized, 
though not roughly enough to injure him, and expelled 
from the cars by such force as we have indicated, 
when he had not in the slightest degree refused to get 
off, nor made any resistance to the act of the con- 



DECEMBER TERM, 1881. 443 



Railroad Company t'. Garrett. 

ductor, and in fact was totally unable to have done 
80. The weather was exceedingly warm, and he must 
in his enfeebled condition have felt it keenly in walk- 
ing back, as he was compelled to do, to his home. 

On these facts we assume the party was properly 
on the cars, so far as his motives and good faith were 
concerned. Having been under a wrong impression 
as to the use of the certificate in paying his fare, he 
was bound to pay his fare, or at any rate unless this 
payment was made to the conductor, he might properly 
have been put off the train, and no liability would be 
incurred by so doing, provided it was done in a 
proper manner, and with no unnecessary rudeness, in- 
sult or injury. In other words, if the plaintiff got 
on the cars in good faith, in ignorance of the fact 
that his tax certificate would not pay his fare, with 
no intention to impose upon the carrier, he cannot be 
treated merely as a trespasser in thus getting on the 
car: Hutchison on Carriers, 459. But on failure or 
refusal, after request, with reasonable opportunity al- 
lowed to comply, to pay his fare, he might be ejected 
or put off the cars by the conductor. 

The fact of a party getting on a passenger car for 
the purpose of travel, of itself creates by operation of 
law a contract, or the law defines the terms of the 
contract, the obligations of which bind both parties. 
On the part of the carrier, among other things, the 
party is entitled to be carried with the care required 
by law, at the established rates and with no unneces- 
sary delay. On the part of the passenger, he is bound 
as the first duty to pay, or offer, or be willing to 



444 NASHVILLE : 



Railroad Company v. Garrett. 



pay his fare according to such reasonable regulations 
as may be established by the company. Payment, 
when demanded, is his duty. The receipt of the com- 
pensation is the right of the carrier, and this is a 
condition precedent, without the performance of which 
he is not bound to perform the service. 

Railroads, being public carriers, are bound to carry 
all who apply, against whom there is no legal objec- 
tion: Hutchison on Carriers, sec. 538. This duty is 
imposed by law, upon payment or oflFer to pay the 
fare required, or properly due for the service. And 
it is said — and we think correctly — that if a party in 
good faith get on a car, in disregard or ignorance of 
a regulation requiring a ticket before getting on, if 
ready and willing to pay the price of his carriage when 
demanded, could not be ejected from the cars because 
of non-compliance with such regulation, but may de- 
mand to be carried to his destination upon an offer 
to pay according to the carrier^s rates: Hutchison on 
Carriers, sec. 570. The principle is, the carrier is 
bound to carry, but is entitled to his pay — when this 
is offered, the law imposes the duty. 

This being conceded, it seems to follow that his 
Honor was correct when he told the jury substantially, 
that if another person offered to pay the fare before 
ejection from the car, the carrier was bound to receive 
it and transport the passenger. It is unimportant to 
the carrier from whom the money comes. If it is the 
proper amount, he gets what he is entitled to, and 
must perform the duty imposed. To require that the 
passenger shall pay his own money would be absurd. 



DECEMBER TERM, 1881. 44& 

Railroad Company t\ Garrett. 

If another party offers to pay for him, it is precisely 
the same as if the party finding himself without money 
to pay, had borrowed the amount from one near hipi 
and tendered it. The conductor would have the same 
right to refuse to accept money thus borrowed, as to 
refuse the offer made in this case. There can be no 
difference in principle in the cases. 

To test this further, however, suppose a carrier 
should make a regulation that none but money from 
the pocket of the passenger himself should be received 
by conductors on passenger trains, and if money should 
be offered by a friend to pay a party's fare, it should 
be rejected, no one could hesitate to say such a reg- 
ulation would be void as unreasonable, and beyond the 
power of the company to make. If such a rule could 
not be properly made, the act of a conductor in such 
a case, without a regulation to that effect, cannot be 
justified. For these reasons, we think his Honor did 
not err on this question in his instructions to the jury, 
and they were well warranted in finding the party 
wrongfully ejected, if they found such an offer was 
made, and was heard by the conductor as he passed 
to the door for the purpose of ejecting the plaintiff. 
Public policy, the interest and rights of the public, 
as well as the known conditions surrounding the busi- 
ness of carrying passengers by railroads in this country, 
demand that no narrow or technical rules should be 
prescribed to enable them to exercise any arbitrary 
authority whatever in the performance of their duties 
growing out of their relation to the public. On the 
other hand, every principle of fairness and of right 



446 NASHVILLE : 



Bail road Company v. Garrett. 



demands that the carrier should be sustained in en- 
forcing such reasonable regulations as may by experi- 
ence be found necessary and proper in the conduct 
and management of the vast machinery to be admin- 
istered in carrying on this complicated and responsible 
business. 

It is urged, however, and cases are cited tending 
to support the position, that immediately on failure to 
comply with the demand of the conductor, the con- 
tract was broken, or was forfeited, and the right of 
the carrier was complete to eject the passenger — re- 
gardless .of a subsequent oflFer before actual ejection, to 
pay, either by himself or another for him. 

To this proposition we cannot assent, at any rate 
in a case like the present. Here was no captious 
objection or refusal to pay, or comply with a reason- 
able regulation of the carrier, such as the cases of 
refusal to give up ticket on receiving a check, or to 
exhibit ticket or the like as in the cases referred to. 
On the contrary, it was only an inability to meet the 
demand for the fare arising out of innocent mistake 
or ignorance. 

The rule contended for stands on too narrow a 
technical logic to meet the demands of right in such 
cases. A rule embodying a reasonable and liberal 
spirit, the one dictated by fairness, and the nature of 
the duties respectively imposed on the parties, should 
be laid down. The rule we have given we think 
embraces the true spirit of the whole contract and the 
rights of the parties on the subject. The passenger 
is entitled to transportation, the carrier to fare. When 



DECEMBER TERM, 1881. 447 

Bailroad Company r. CJarrett. 

this is paid or offered, the law imposes the duty — 
and if offered by or for a passenger before his evic- 
tion from the car, then his right is fixed, and the 
duty of the carrier arises. 

Ejection from the car is not in the nature of a 
forfeiture or penalty to be enforced by the conductor. 
It is simply the exercise of a legal right, that right 
to be exercised with due regard to the rights of others. 
The case of a party taking passage on cars, like the 
one before us, may well be likened to that of a party 
who is in another man's house, not having been guilty 
of a trespass in entering. In such a case the long- 
settled rule is, that he must be told to leave before 
he can be forcibly* put out, and such a degree of force 
then only shall be used as is necessary to accomplish 
the object: Wait's Act. and Def., vol. 6, p. 121, cit- 
ing Weaver v. Bush, 8 Term. R, 78; 4 Denio, 448; 
and if wanton injury be inflicted even on a trespasser, 
he may maintain an action therefor: Deane v. Clayton, 
7 Taunt., 489. And these rules apply to a railroad 
company ; and a party may lawfully resist being put 
off the train with unnecessary rudeness or violence : 
Wait, 122. 

An extreme case, it may be, will put this in a 
light that will perhaps make it clearer. An old feeble 
woman gets on the car, thinking she has the means 
of paying her fare, but finds herself mistaken. The 
law authorizes, and the regulations of the company 
require, that she shall be put off. But a gentleman 
sees her case, and after she has been started out of 
the car proposes to pay, out of motives of humanity. 



448 NASHVILLE : 



Railroad Company v. Garrett. 



Could any one say that a carrier, with the obligations 
of his position, should not promptly receive his com- 
pensation and return her to her seat? The common 
sense of all would at once answer in the affirmative, 
and the moral sense of every man be shocked at the 
assertion of a contrary rule. 

We do not decide on a case where there is a re- 
fusal to pay captiously and vexatiously — we have no 
such case before vs. But as applicable to the facts 
of this case, we have no question his Honor's charge 
was correct, and approve the principle announced. 

The next question is, that his Honor allowed the 
jury, if they thought proper, to give punitive damages 
or smart money in this case. We held, upon full 
consideration, in the case of Haley v. ilobile & Ohio 
Railroad Co., 7 Baxt., 243, that a railroad company 
was liable for vindictive damages, in all cases where 
the elements required to give such damages were found, 
as in the case of natural persons. In that opinion, 
by C. J. Deaderick, we approved the principle of the 
case of Goddard v. Grand Trunk Railroad Co,, Maine 
R., cited from American R., vol. 2, 39, in this lan- 
guage : *' That there is no class of cases where the 
doctrine of exemplary damages can be more beneficially 
applied than in the case of railroad corporations, in 
their capacity of compion carriers of passengers." We 
see no reason to go over the cases in other States to 
find support for this view. It is sound in our judg- 
ment, and needs no further discussion. 

It is proper to say, that the case of Starnes v. 
Nashville & Chattanooga Railroad, 9 Heis., 53, did not 



DECEMBER TERM, 1881. 449 



Railroad Company v. Garrett. 



intend to announce any contrary general doctrine, and 
does not, when considered in connection with its facts. 
So far from limiting the liability of a railroad com- 
pany, for the acts of its servants, when an iijury is 
done in the performance of the duties of their posi- 
tions, it was extended in that case to the act of the 
servant, in wantonly and for mischievous purposes, 
using the engine of the compau)'^ to alarm horses in 
a wagon — (a proposition the writer of this opinion 
thinks a very doubtful one.) In a case like that, 
however, it was said the company should not be held 
liable for vindictive damages, because, says the judge i 
** The act complained of was manifestly done without 
the defendant's knowledge or consent, and was the 
willful and unauthorized act of the servant alone." 
Whether this be correct or not in reference to the 
facts of that case we need not now determine, but it 
has no application whatever to the case before us, 
where the act done was in the strict line of the duty 
of the conductor — but done under a state of facts not 
justifying the act done, and in a wrongful and perhaps 
careless manner, to the injury of plaintiff. 

We need not discuss the question of general lia- 
bility of corporations for the acts of their agents for 
wrongs done in the performance of their functions. 
As said by this court in the case of Nashville & Chat- 
tanooga Railroad Co. v. Elliott y 1 Cold., 614: "In 
general, the only mode in which a corporation aggre- 
gate can act is through the intervention of their agents," 
etc. This, however, is all familiar law, that at this 

day needs no s^^upport from authority, 
29— VOL. 8. 



450 NASHVILLE 



Bailroad Company v. Garrett. 



As to the amount of damages in this case, we need 
only say, it is a matter largely left by the law to 
the discretion of the jury — and we see nothing in the 
sum allowed in this case, $2,000, which would author- 
ize or require a reversal on this account. 

AVe see nothing in the affidavits of newly discov- 
ered testimony worthy of notice. They are but little 
if any more than the statement of a party that he 
did not see — some things testified to by plaintiff"'s wit- 
nesses. But in addition we see from the record, that 
the conductor himself was present in court, as a wit- 
ness for the defendant, who knew all the facts, and 
is shown to have been a truthful man, and yet de- 
fendant failed to introduce him to contradict the facts 
deposed to. There was ample means at hand to have 
had the best testimony that could be had on these 
questions, which defendant neglected or refused to in- 
troduce. 

Upon the question of a new trial, his Honor stated 
he thought the damages too much, and required a 
remittitur, but because the defendant refused to abide by 
his judgment, and would not agree not to appeal to 
this court, he allowed the judgment to stand. This 
was reprehensible; but we see from the record, this 
was based not on the evidence, but on the affidavits 
presented on the motion. We do not think these were 
suflBcient, and have so ruled ; and therefore as his view 
was not on the testimony before the jury, we see no 
error in it. 

Let the judgment be affirmed. 



DECEMBER TERM, 1881. 461 



The State v. Goodbar. 



The, State v. Nancy Goodbar. 

Costs. TaxcUiim, Suprenw Court, JuriAdiction. The jurisdiction of this 
court over the taxation of its own costs is plenary, and where there is 
anything in the transcript to correct by, an erroneous taxation of 
costs in the inferior court may be corrected, but not otherwise. 



FROM WARREN. 



MOTION TO DISCHAR(iE SUPERSEDEAS. 

Attorney- General Lea for the motion. 

McMuRRAY against the motion. 

Cooper, J., delivered the opinion of the court. 

A judgment having been rendered in this case at 
the last term in favor of the State against Nancy 
€roodbar, she obtained a supersedeas from one of the 
judges of the court, superseding the execution as to 
some of the items of costs because erroneously taxed. 
A motion is now made by the State to discharge the 
supersedeas. 

The taxation of costs is an incident to a suit, and 
the jurisdiction of adjusting and correcting the taxation 
must be left to the forum which determines the suit. 
If the taxation be erroneous, the cost may be retaxed 
at the instance of the party aggrieved : Code, sec. 3212. 
The jurisdiction of this court over the taxation of its 



452 NASHVILLE : 



The State v. Goodbar. 



own costs is plenary, and, where there is anything in 
the transcript to correct by, an erroneous taxation of 
costs in the inferior court mav be corrected here: 
Whitesides v. Rayle, 3 Hum., 205; Rosa v. McCarty, 3 
Hum., 169. But the taxation of costs by the inferior 
court for the attendance of witnesses there cannot be 
corrected by the appellate court, unless a motion has 
been made in the lower court to correct the taxation, 
the opinion of the court had upon the question, and 
the motion and judgment entered of record : Sherman 
V. Browriy 4 Yer., 561. The reason is, that the tax- 
ation of the costs of the trial belongs to the trial 
court, and the jurisdiction of this court in that regard 
is only for the correction of errors appearing of record. 

The petition, upon which the supersedeas in this 
case was granted, states that the erroneous taxation com- 
plained of is in the attendance and mileage of certain 
witnesses named, the clerk not having sworn the wit- 
nesses as required by law; in allowing an officer for 
serving more subpoenas than were executed ; in allow- 
ing for an extra guard when no guard was necessary ; 
in allowing the clerk fees for more recognizances than 
were taken, and for the transcript more than he was 
entitled to ; and in allowing a certain person named 
a larger fee for a particular service than the law gives. 
The excess in the costs taxed is put at about $82. 

This court may correct the error, if any, in the 
charge for the transcript, and any fees in the bill of 
costs which upon their face are in excess of those al- 
lowed by law, and a retaxation for these purposes will 
be ordered if required. The other items complained 



DECEMBER TERM, 1881. 453 

Aymett v. Butler. 

of, could only be corrected in the first instance in the 
court below. Whether it can now be done in that 
court is a question not before us, and on which we 
express no opinion. 

Ordered accordingly, modifying the supersedeas to 
that extent. 



E. F. Aymett v. J. D. Butler, Adm'r, and another. 

1. Bill of Exceptions. Depositions excluded by the chancellor because 

of the incompetency of the witness must be made a part of the record 
by bill of exceptions. 

2. Witness. Incompeteni. When. Upon bill tiled by a judgment cred- 

itor to reach the indebtedness of a deceased person to the debtor by 
open account, either upon a return of nulla bona or upon an assignment 
of the account, the debtor, made a party to the suit, is not a compe- 
tent witness, under the Code, sec. 3813 cZ, to prove the account. 



FROM GILES. 



Appeal from the Chancery Court at Pulaski. W. S. 
Fleming, Ch. 

N. & F. Smithson for complainant. 

A. J. Abernathy for defendants. 



8L453 
lOL 115 



454 NASHVILLE: 



Aymett v. Butler. 



Cooper, J., delivered the opinion of the court. 

The complainant, as the owner by purchase of a 
judgment against defendant J. E. Lancaster upon which 
an execution had been returned nulla bona^ filed this 
bill against the defendant Lancaster, and the defendant 
Butler as the administrator of James M. Marks, de- 
ceased, to reach for the satisfaction of the judgment 
an alleged indebtedness of the deceased to Lancaster 
for medical services. The only evidence introduced 
by the complainant to establish the alleged indebted- 
ness, which was denied by the administrator in his 
answer, consisted of the deposition of Lancaster himself. 
The only evidence introduced by the defendant Butler 
consisted of his own deposition undertaking to detail 
a conversation between him and deceased shortly before 
the death of the latter touching said alleged debt. 
The chancellor, upon motion of the complainant, ex- 
cluded the deposition of Butler, and, upon like motion 
of Butler, adjudged the deposition of Lancaster to be 
incompetent and inadmissible, and dismissed the bill. 
Neither deposition is made part of the record by bill 
of exceptions, and cannot, therefore, be noticed by this 
court: Ferry v. Pearson, 1 Hum., 131; Spurlock v. 
FulkSf 1 Swan, 289. There being no evidence to es- 
tablish the debt sought to be reached, the bill neces- 
sarily fails, and was properly dismissed. 

The question sought to be raised by this appeal, 
and argued by counsel is, whether Lancaster is a com- 
petent witness to establish the existence of the indebt- 
edness of the intestate to him, which the complainant 



DECEMBER TERM, 1881. 455 

Aymett v. Butler. 

is seeking by his bill to reach. This question turns 
upon the construction of the act of 1870, ch. 78, sec. 2, 
brought into the Revised Statutes, sec. 38l3rf. That 
section is; "In actions or proceedings by or against 
executors, administrators or guardians, in which judg- 
ments may be rendered for or against them, neither 
party shall be allowed to testify against the other as 
to any transaction with, or statement by the testator, 
intestate or ward, unless called to testify thereto by 
the opposite party." This is an action against an 
administrator to hold the estate of his intestate liable 
to the defendant Lancaster for the benefit of the com- 
plainant. It is equivalent to a suit at law on the 
alleged indebtedness by open account in the name of 
Lancaster for the use of complainant. In such a suit, 
Lancaster would be incompetent, either at common law 
or under the statute, to prove transactions with, or 
statements by the intestate tending to establish the debt : 
Anderson v. JBradie, 7 Yer., 297 ; Trabue v. Turner, 10 
Heis., 447. An actual transfer of the account by Lan- 
caster to complainant pending the suit could not alter 
the resuft. 

AfiBrm the decree with cC'Sts. 



456 



NASHVILLE : 



McAdams v. The State. 



8L 456 
117 615 



W. C. McAdams V, The State. 



1. Criminal Law. Charge of amrt. Upon the trial of an indictment for 

stealing a mule, there is no error of which defendant can complain 
in the following charge: ''If you find from the proof that the prose- 
cutor, with others, agreed or arranged with the principal witness for 
the State that he and defendant should steal his, the prosecutor's 
mule, then the defendant would not be guilty; but on the other hand, 
if you find from the proof that the defendant formed a design to steal 
mules, and communicated this design to the principal witness, or if 
the defendant and the principal witness formed the design to steal 
mules, and the prosecutor, with others, being informed of the fact, 
arranged with the principal witness to so conduct matters as that the 
defendant might be detected and caught, then the defendant would be 
guilty." 

2. Same. Emhnce. There is no error in sustaining an objection to a 

question of the defendant, the expected response to which would not 
be relevant to the issues on trial, nor of any service to the defendant 
unless coupled with other evidence not oflTcred. 

3. Same. Same. Neiv frUiL When a prisoner's guilt is clearly estab- 

lished by direct testimony, it is no ground for a new trial that evi- 
dence was introduced not strictly admissible, if the court can see that 
the defendant was not prejudiced thereby. 



FROM SUMNER. 



Appeal in error from the Circuit Court of Sumner 
county. J. W. Judd, Sp. J. 

T. C. McLLKiAN and W. C. Dismukes for McAdaras. 



Attorney-General Lea for the State. 



DECEMBER TERM, 1881. 457 

Mc Adams r. The State. 

CooPi;ji, J., delivered the opinion of the court. 

Conviction for the larceny of a mule, from which 
the prisoner has appealed in error. 

The mule was taken on the night of July 20, 1880. 
A few weeks previously another mule had been stolen 
in the t^ame neighborhood from John Harris. During 
the June term of the circuit court of the county, Tomp- 
kins, one of the witnesses for the State in this casee, was 
approached by the plaintiff in error, McAdams, and taken 
f>ut on the balcony of the court-house, where they 
were alone, and asked if he knew that he (Tompkins) 
was suspected of stealing Harris' mule. Tompkins 
replied in the negative, and remarked that those who 
suspected should come and see him on the subject. 
Defendant then told Tompkins to send no such word, 
that it would ruin the whole thing; that there was 
a good deal of fine stock in his neighborhood, and if 
properly handled money could be made out of it. 
Defendant further told Tompkins to say nothing about* 
what had passed between them, and that they had 
better not be seen together as they might be suspected ; 
that he would see him again or write to him. Tomp- 
kins communicated his conversation to Hill, a neigh- 
bor of defendant, who advised him to be cautious of 
defendant, who was a bad fellow and might get him 
into trouble. Tompkins did not see defendant for 
several days, nor receive any letter or message from 
him. In the meantime. Hill, thinking that defendant's 
proposition to Tompkins meant larceny, went to see 
Tompkins, who lived seven or eight miles from him, 



458 NASHVILLE: 



Mc* Adams v. The State. 



and arranged with him to go to see the defendant on 
the succeeding Sunday, and ascertain definitely what 
he meant. Tompkins did accordingly visit defendant, 
stopping: at HilFs on the way. At the interview then 
had, defendant disclosed to Tompkins that his plan 
was to steal some of the stock of his neighbors, to be 
carried south by Tompkins and sold, the proceeds to 
be divided between them. Tompkins ostensibly en- 
tered into the plan, and the next Tuesday night was 

• 

fixed upon as the time to move the stock. The re- 
sult of the interview was communicated to Hill, who 
informed some of the neighbors, and it was arranged 
between them to lie in wait for the defendant. On 
Tuesday night, Tompkins went to the defendant's house, 
and they started together on one of the defendant's 
horses to steal the stock of some of the neighbors. 
Two witnesses prove that they saw them that night 
riding on the . horse, the defendant in front, coming 
from the direction of the defendant's house, and going 
in the direction of the place of a neighbor named 
Woodson. They did go first to the slable of Wood- 
son, but he was on his guard, having been notified of 
the. attempt, and scared them off. They then started 
to another neighbor's, passing the prosecutor's lot on 
the way. They stopped and looked at prosecutor's 
stable, and, while there, one of the prosecutor's mules 
came up to the fence where their horse was hitched, 
and the defendant caught the mule, put a halter on 
it which he had brought with him, and led it off. 
A party of the neighbors, including the prosecutor, had 
concealed themselves near the defendant's gate. Wheri 



/ 



DECEMBER TERM, 1881. 459 

Mc Adams v. The State. 

defendant and Tompkins reached the gate, the defend- 
ant, who was leading the mule, turned it over to 
Tompkins, telling him to sell it, and • if he could not 
get $100 to take $75, and return in about three weeks, 
when he, defendant, would have several other and bet- 
ter mules for him. After Tompkins had gone some 
distance, the concealed party rushed out and caught 
the defendant. One of the party asked defendant 
whose mule that was, and he replied that he had no 
mule. He was also asked who the man was that was 
with him, and he said he did not know him. One 
of the witnesses testifies that, on the next day, de- 
fendant said to him that if they had not caught him 
when they did, he does not know how many of the 
neighbor's mules he would have stolen. All of the 
neighbors present were examined by the State, and 
each, as well as Tompkins, Hill and Woodson, testified 
that no inducement was held out by them, or any of 
them, to the defendant to commit the larceny. It 
seems also, from Tompkins' testimony, that he and 
defendant had hot contemplated the taking of any of 
the prosecutor's stock. And the prosecutor himself 
says that if he had known or supposed that his stock was 
to be raided, he would have taken steps to prevent it. 
Upon the foregoing facts it is not pretended that 
the jury were not fully warranted in finding the de- 
fendant guilty of the offense charged. The objection 
made is to the judge's instruction to the jury. His 
Honor, after stating the opposing views of the State 
and the defendant, said : " If one person agree with 
another that the latter with a third person shall stea' 



460 NASHVILLE: 



McAdams r. The State. 



his, the former^s property, this would not be larceny, 
for larceny cannot be predicated of a taking when a 
person consents to, or agrees that his property shall 
be taken. But if, on the other hand, the original 
design or intent to steal is formed, and the prosecutor 
should find this out, and agree with another to so 
arrange matters as that the person who had formed 
such design to steal should be detected, then if the 
design to steal, thus formed, be carried out, it would 
be larceny, although it might be the prosecutor's prop- 
erty that was taken. If, therefore, you find from the 
proof that the prosecutor, with others, agreed or ar- 
ranged with Tompkins that he and defendant should 
steal his, the prosecutor's mule, among the horses and 
mules of others, then the defendant would not be 
guilty and you should acquit him. But, on the other 
hand, if you find from the proof that the defendant 
formed a design to steal mules, or horses, and com- 
municated this design to Tompkins, or if the defendant 
and Tompkins formed the design and intent to steal 
horses and mules, and the prosecutor, among others or 
with others, being informed of this, arranged with the 
said Tompkins to so conduct matters as that the de- 
fendant might be detected and caught, then the de- 
fendant would be guilty, and you should convict him.^' 
To constitute larceny, the possession of the property 
must be taken against the will of the owner. If, 
therefore, the owner direct his servant, or other em- 
ployee, to deliver property to a supposed thief who 
had not formed the design to steal it, and the latter 
take it, there would be no larceny, even it seems if 



DECEMBER TERM, 1881. 461 

McAdams v. The State. 

the taking be with felonious intent: Kemp v. State^ 
11 Hum., 320. If, however, the owner suspects that 
an offense is to be committed, and, instead of taking 
precautions against it, sets a watch, and detects and 
arrests the offender, he does not so consent to the 
taking as to excuse the crime. . A man may direct 
his servant, or a third person to appear to encourage 
the design of a thief, and lead him on until the offense 
is complete, so long as he does not induce the ori- 
ginal intent, but only provides for its discovery after 
it has been formed : Dodge v. Brittaviy Meigs, 84. 
The facts of the present case, as well as the charge 
of the court, are analogous to those of Sanders v. Statey 
3 Leg. Rep., 296. There if* certainly no error in 
the charge, of which the defendant can complain. 

The defendant offered O. B. Harris as a witness, 
and asked him the following question : " Did you or 
not go to defendant's house a short time before he 
was arrested, and tell him that your brother, John 
Harris, had lost a mule, and that Andrew Tompkins 
and a man by the name of Kirby were suspected as 
the parties who stole the mule, and request defendant 
to keep a lookout, and if he could find out anything 
aboiit -the matter to let you know it? If so, did not 
defendant tell you that he knew Tompkins, but did 
not know Kirby, and that he would enquire and find 
out what he could? And was not the Tompkins re- 
ferred to, the same Tompkins who testified in this 
case?" The State objected to the question, and the 
objection was sustained by the court. Error is as- 
signed on this ruling. 



462 NASHVILLE: 



McAdams v. The State. 



Any answer responsive to the question, or series of 
questions propounded, it is obvious, would have had 
no relevancy to the issues in the case before the court. 
The argument is, however, that the conversation might 
have explained why the defendant first approached 
Tompkins in the manner deposed to by the latter. 
But the reason for approaching Tompkins could have 
nothing to do with the subsequent event, or the acts 
of the defendant for which he was then on trial. The 
conversation was irrelevant unless the defendant had 
proposed to follow it up with evidence coupling it 
with his acts, or explanatory thereof. No such offer 
was made. And in the absence of anything else, the 
expected answer to the question was not only irrele- 
vant, but could not possibly have been of service to 
the defendant. For if the conversation did induce the 
defendant to approach the witness Tompkins, it was, 
perhaps, in view of what did occur, because it led 
him to think that Tompkins was a party to the theft 
mentioned, and therefore approachable in the mode 
adopted. 

Upon cross-examination of one of the witnesses for 
the State, the defendant's counsel asked the witness 
*' if Tompkins was not suspected of stealing Harris^ 
mule?" The witness replied no, but that the defend- 
ant was suspected of stealing it. The defendant ex- 
cepted to the reply after the responsive negation, but 
the exception was overruled, and the answer went to 
the jury. Error is assigned on this ruling of the 
court. 

The answer of the witness, in so far as it was ex- 



DECEMBER TERM, 1881. 463 



McAdams v. The State. 



tjepted to, was not responsive to the question, was 
clearly incompetent and should have been excluded. 
Does its admission necessarily compel a reversal? 

Evidence of another substantive offense than that 
for which the defendant is on trial, except where it 
is material to show the intent or motive of the act 
charged, is inadmissible: Wilcox v. State, 3 Heis., 110, 
116. The testimony in question does not amount to 
such proof. The trial judge no doubt thought it might 
tend to explain the conduct of the defendant's neigh- 
bors, and the real ground of objection is that it tended 
to prejudice the defendant by raising a suspicion as to 
his character for honesty. The rule in this State both 
in civil and criminal cases is that if incompetent evi- 
dence has been received that might have influenced the 
jury, a new trial will be awarded, for it cannot be 
seen how far such evidence did influence the jury : 
Peek V. State, 2 Hum., 78 ; Foster v. Jackson, 8 Baxt., 
433. If, however, the evidence, although not strictly 
admissible, is not ot a character to damage the de- 
fendant, or, as it has been otherwise expressed, if the 
court can clearly see that the error has not influenced 
the result, it is no ground for a new trial : Draper 
V. State, 4 Baxt., 254; Wilson v. Smith, 5 Yer., 381, 
409 ; Clark v. Rhodes, 2 Heis., 206 ; Patterson v. Head, 
1 Lea, 664. And it has been decided in criminal 
cases, where the admissibility of the defendant\s con- 
fessions was in question, that inasmuch as there was 
ample proof of the prisoner's guilt, independent of his 
confession, if there were doubt as to the manner in 
which it was obtained, the court would not reverse 



464 NASHVILLE: 



Me Adams v. The State. 



therefor: Simpson v. State, 4 Hum., 456; Wilson v: State^ 
3 Heis., 244. Nearly all of the criminal cases which 
have been reversed for the admission of incompetent 
testimony in this State, where the verdict might have been 
sustained on the competent testimony in the record, have 
been cases in which the guilt was made out by cir- 
cumstantial evidence, and not direct proof: Peek v. 
State, 2 Hum., 78 ; Shaw v. State, 3 Sneed, 87 ; Grigsby 
v. State, 4 Baxt., 19. The case of Belcher v. State, 8 
Hum., 63, is an exception, where the distinction was 
not made. The rules of evidence are the same in 
criminal as in civil cases: Code, sec. 5376; 1 Gr. Ev., 
sec. 65. And, ordinarily, when a prisoner's guilt is 
made out clearly by positive testimony, it should be 
no ground for a new trial in this court that evidence 
was introduced which was not strictly admissible, if 
the court can see that the defendant was not preju- 
diced thereby. It would be otherwise in a case of 
circumstantial evidence, unless the circumstances were 
as conclusive as direct testimony. 
Affirm the judgment. 



DECEMBER TERM, 1881. 465 



Bljike V. Dodj^. 



Blake v. Dodge. 

1. SuPEBSEDAS. Motion to discharge. I'i)fm an application for a 8itp«7's«ica«^ 
under the Code, 3933, the (luestion is not whether the order asked to 
be superseded, was erroneous, but whether it is within the meaning 
of the statute, namely, one to be actively enforced, and which may de- 
prive the petitioning litigant of money or property in advance of the 
final hearing. A.nd if the writ is granted by one of the judges of the 
court in vacation, all the court can do, upon a motion to discharge^ 
is to see that the order is of the character contemplated by the 
statute. 



FROM DAVIDSON. 



Appeal in error from the Chancery Court of Da- 
vidson County. A. G. Merimtt, Ch. 

T. W. Wrenne for Blake. 

R. L. Morris for Dodge. 

Cooper, J., delivered the opinion of the court. 

The motion made in this case, is to discharge the 
supersedeas, granted by one of the judges of this court 
in vacation, under the Code, 3933, and for this pur- 
pose we are asked to look into the proceedings of the 
court below, and pass upon the propriety of the order. 
The motion, and the argument in support thereof, raise 
the question whether the court can revise the action 
of one of its judges, under the statute, and to what 

extent. 

30— vol.8. 



466 NASHVILLE : 



Blake t". Dodge. 



The Code, in substance, provides that the supreme 
court in term, or either of its judges in vacation, may 
grant a writ of i<wpersedeas to supersede an iuterlocu- 
tory order or decree of the chancery court, and re- 
quire a bond, with good security, to pay the amount 
of the order or decree, if required on final hearing, 
and all such costs and damages as the opposite party 
may sustain. A copy of the petition and supersedeas 
is to be filed in the cause in the chancery court, as 
part of the record. 

These provisions clearly do not contemplate the 
bringing up to this court by the supersedeas of the 
cause in which the order was made, or am part of 
it, for immediate revision. And it has, consequently, 
been held that the writ will not operate as an appeal 
or writ of error: McMinnviUe & Manchester Railroad 
Co. V. HugginSj 7 Cold., 217. The object of these 
provisions was to enable the court, or one of its judges, 
to stay the execution of an order or decree of the 
chancery court which, in advance of the final hear- 
ing, undertakes to deprive the litigant of money or 
property. And the reason of the legislation was, that 
under our system of jurisprudence, an appeal lies of 
right from every final decree, and that the remedy 
would be of no avail if the court undertook to do by 
interlocutory order what ought only to be done by the 
final decree. The orders and decrees intended to be 
embraced in the statute were only such as are of a 
nature to be actively enforced against the rights of 
property of the litigant, not those intended to impound 
or protect. Upon an application for the writ, the 



DECEMBER TERM, 1881. 467 



Blake v. Dodge. 



question is not whether the order or decree was erro- 
neous, for to proceed on that ground would be to re- 
vise the action of the chancellor as upon an appeal or 
writ of error, but is it within the meaning of the 
statute. In this view, if the supersedeas be granted 
by a judge in vacation, all that the court can do, 
upon a motion to discharge the supersedeas, is to see 
that the order superseded was of the character contem- 
plated by the statute*: Redmond v. Redmond , 9 Baxt., 
561 ; Park v. Meeh, 1 Lea, 78. 

The bill in this case was filed to close up a part- 
nership in a race mare. The mare was to be trained 
by the defendant at certain wages, and, when trained, 
sold, and the profits divided. The order of sale may 
deprive the defendant of his property before the animal 
is trained so as to ensure the expected profits. The 
order may not be erroneous*, and yet it certainly ac- 
complishes in advance all the purposes of the final de- 
<5ree. It clearly falls within the statute. 

Motion disallowed. 



468 NASHVILLE 



Smith V. O'Donnell. 



8L 
fll6 1 



Smith v. O^Donnbll. 

1. Contract. Partly in writing and partly in parol. A contract partly in 

writing and partly iu parol is an oral contract, and this will be the 
case where the written contract is imperfect or incomplete for the 
want of a signature, or because it contains no obligation on the part 
of one of the contracting parties. 

2. Same. Same, Where, therefore, a contra(^tor and a sub-contractor, for 

the grading of certain sections of a railroad, undertook to reduce the 
contracts between them to writing, using the printed forms of the rail- 
road company, and the draftsman filled up the forms 89 unskillfully, 
that the one contract expressly purjwrted to be between the contractor 
and sub-contractor of the one part, and the railroad compan^^-of the 
other part, and both contracts stipulated that the payment of the 
price of the work to be dcme by the sub-contractor should Ije made by 
the company, the railroad company being no party to the transac- 
tions, and contained no obligation on the part of the contractor to the 
sub-contractor, it wa» held, in an action at law by the sub-contractor 
against the contractor on the contracts as oral, that the writings were 
incomplete, but might l)e looked to, in connection with the parol tes- 
timony, to ascertain what the contracts were. 

3. Same. Action far breach of. Measure of damages. In an action upon a 

contract for the grading of a railroad, to recover damages for a breach 
of the contract by the defendants in ])re venting the plaintiff from 
completing the work, the difference between the probable cost of doing 
the work and the contract price is a proper measure of damages. 

4. Same. Same, Same. Evidence. In such an action, it is competent to 

prove by the plaintiff the amount of the work remaining to be done, 
tity its probable cost, and the fact that after stating that the quan- 
and might be so much, he confesses that he does notknow and can- 
not pretend to state the quantity, will not make the evidence in- 
competent, although it may render it of little value. 

5« Same. Same. Same. But the loss which the plaintiff may have sus- 
tained by the foreclosure of a trust assignment on the stock used by 
him in performing the work, or by the levy upon his tools, after he 
has been compelled to stop the work, is not an element in ascertain- 



DECEMBER TERM, 1881. 469 

Smithtv. O'Donnell. 

ing the damages occasioned by such stoppage, aud it was error t« 
permit the plaint iif, over the objection of the defendant, to make suck 
proof. 



FROM DAVIDSON. 



Appeal in error from the Law Court of Davidson 
county. J. C. Guild, J. 

J. C. & J. M. Gaut for Smith. 

J. P. Helms and Smith & Allison and Ed. Bax- 
ter for O^Donnell. 

Cooper, J., delivered the opinion of the court. 

W. & T. C. Smith were contractors, by contract 
with the Memphis & Charleston Railroad Company, to 
complete the grading, masonry, etc., of a number of 
sections on the Sparta branch of that company's road. 
Council O'Donnell became a sub-contractor, by contract 
with the Smiths, to do all the grading on section 15 
of that branch road. Before completion of the work, 
he was ordered by the company and by the Smiths 
to quit work on that section, and go to section 8. 
Me thereupon entered into a new contract with the 
Smiths to grade that section. At the same time it was 
agreed between him and the Smiths, in a certain contin- 
gency, that he should also do the work on section 9, 
and he did afterwards go to work on that section. Be- 
fore the completion of the grading of those two sections, 
the fiailroad Company, under a power reserved in its 
contract with the Soiiihs, stopped the work altogether^ 
■and the Smiths directed O'Donnell to quit also. This 



470 NASHVILLE: 



Smith I'. O'ftmnoll. 



suit was brought by O'Donnell against the Smiths to 

recover for the work done, and damages for the breach 

of the contracts by the Smiths in preventing him from 
completing the work. The verdict and judgment were 

in favor of O'Donnell, and the Smiths appealed in 

error. 

The parties undertook to reduce their original con- 
tract to writing, using for this purpose one of the 
printed forms of the Memphis & Charleston Railroad 
Company, for contracts between it and its contractors. 
The written instrument, signed by the plaintiff and de- 
fendants to this suit, was dated January 10, 1872, and 
related to section 15. The contract in relation to 
section 8 was also reduced to writing in the same way, 
on May 1, 1872. At the time, this last contract was 
entered into, it was verbally agreed between the par- 
ties, that O'Donnell should, in a contingency which 
happened, do the work on section 9 on the same 
terms, and a written memorandum to this effect was 
afterwards endorsed on the instrument of May 1, 1872, 
by the local engineer of the railroad company. 

The plaintiff in the court below filed at first t^n 
counts in his declaration based upon the written con- 
tracts. The defendant demurred to the declaration, as- 
signing as causes of demurrer, that the supposed con- 
tracts of January 10, and May 1, 1872, show on their 
face that the Memphis & Charleston Railroad Compa- 
ny were to control and pay for the work to be done 
by the plaintiff, and that the defendant did not cov- 
enant or promise to pay therefor; and that the con- 
tract of May 1, 1872, purports on its face to be a 



DECEMBER TERM, 1881. 471 

Smith V. O'Donnell. 

contract between the plaintiff and defendants on the one 
part, and the Memphis & Charleston Railroad Com- 
pany on the other part, and was never completed by 
being signed by the company. 

The contract of May 1, 1872, when produced upon 
oyer of the defendants, does recite the agreement as 
made bv "Connell O'Donnell and W. & T. C. Smith, 
of the first part, and the Memphis & Charleston Rail- 
road Company, of the second part,"- and provides that 
the work shall be done under the direction of the en- 
gineer of the company, and paid by the company. 
The contract of January 10, 1872, purports to be be- 
tween O'Donnell of the first part, and W. & T. C. 
Smith of the second part, and recites that the party of 
the first pirt agrees to do the work of graduation " in 
consideration of the payments and covenants hereinafter 
mentioned to be made afnd performed by said rail- 
road company." It further recites: "And the said 
Memphis & Charleston Railroad Company agrees td 
pay the first party for completing this contract accord- 
ing to its terms, the prices affixed,'' etc. It also pro- 
vides for the payment, about the first of each month, of 
four fifths of the estimates of the company's engineers, to 
to be paid by the treasurer of the company in certain 
specified funds, and for the payment of the other fifth 
when the work is completed. It contains no obligation 
on the part of W. & T. C. Smith, either directly to 
the plaintiffs, or for the performance of the covenants of 
-the railroad company by the company. 

• The circuit judge was of opinion that these writ- 
ten instruments were merely memoranda of contem- 



472 NASHVILLE: 



Smith V. O'Donnell. 



plated contracts, which were never completed by their 
execution by the railroad company, and he therefore 
sustained the demurrer. 

The plaintiff, then, by leave of the court, filed three, 
new counts, one proceeding upon a quantum meruit, 
another containing the common counts, and the third 
being a specia.1 count setting out the contracts between 
the parties as parol contracts. The defendants pleaded 
to these counts, among other pleas, the general issue 
and payment, and a special plea that the only con- 
tracts the defendants ever made and signed with the 
plaintiff, were printed forms of contract with the Mem- 
phis & Charleston Railroad Company, the blanks being 
filled, signed by plaintiff and defendants, but not by 
the railroad company, and dated respectively January 
10, and May 1, 1872, profert of which was made by 
the original declaration ; and that all the work to be 
done by the plaintiffs was to be done for, and paid by 
'the railroad company, and not by the defendants. The 
parties joined issue on these pleas, and the defendants 
procured au order of the court that the plaintiff file 

the contracts made profert of in the original declara- 
tion, and the plaintiff produced and filed them ac- 
cordingly. 

On the trial of the case, the plaintiff and both de- 
fendants, who were all examined as witnesses, proved 
that the contracts, under which the plaintiff worked, 
were made exclusively between them, and that the 
Memphis & Charleston Railroad Company was no party 
thereto. These witnesses all agree that they did un- 
dertake to reduce the contracts to writing, the drafts- 



DECEMBER TERM, 1881. 473 

Smith V, O'Donnell. 

man, one of the local engineers of the railroad com- 
pany, using for this purpose the usual printed forms 
of the compauy. They further agree that these in- 
struments correctly represented the work to be done, 
the prices to be paid, and the terms of payment, 
namely, four- fifths of the monthly estimates as the work 
progressed, and the other fifth on a final estimate. 
The Smiths prove, moreover, that they received the 
money due on the estimates from the railroad compa- 
ny, under their contract with the company, and paid 
the plaiutifT for his work under their contracts with 
him. The plaintiff read as evidence the two written 
instruments of January 10, and May 1, 1872, and 
proved that he and defendants made their contracts at 
first in parol, and afterwards undertook to put them in 
writing in said instruments; that these were the only 
contracts ever made between them, and that the rail- 
road company was not a party to the contracts between 
him and defendants. 

The first error relied on by the plaintiff in error 
for reversal is that, upon the trial, the plaintiff read 
to the jury the written contracts, and then proved that 
they did not embody the real contracts, and sought a 
Tecovery upon them as changed by parol testimony. 
In other words, it is argued that the plaintiff was per- 
mitted to change written contracts by oral evidence. 
If the trial had been on the declaration as first filed, 
the ten counts of which were based on the written 
contracts, the error assigned would have been fatal. 
For, it is well settled that parol testimony is inadmis- 
4sible at law to change the terras of a written contract 



474 NASHVILLE : 



Smith V. O'Donnell. 



sued on, or to alter its legal effert. But the demur- 
rer of the defendants to these counts was sustained^ 
and the trial was had upon the tliree counts of the 
amended declaration, all of which proceeded upon the 
ground that the contracts sued on were in parol. A 
contract may be i)artly in writing and partly in parol, 
in which case it is an oral contract : Bishop on Con., 
sec. 68, 647; Turley v. Cooky, 2 Memph. L. J., 229. 
This will be the case where the writing is imperfect 
or incomplete, or where a complete cr)ntract is afterwards 
changed orally. In such cases, the writing and the 
parol testimony are competent to show the entire con- 
tract. The question before the court and jury, in the 
present instance, was, therefore, whether the writtea 
instruments constituted complete contracts, which were 
never orally changed. But the defendants themselves, 
treated the writings as incomplete, for want of tne 
signature of the railroad company, and as not creating 
any obligation on their part, and filed a successful de- 
murrt'r to the original declaration on these grounds. 
Obviously, if the signature of the railroad company 
was required, or if, for any other reason, these writings 
created no obligation on the part of the defendants, 
the instrument would be incomplete as contracts, and 
parol testimony was , admissible to show what the con- 
tracts really were. After the instruments, upon their 
application, had been adjudged to be incomplete and 
not obligatory on them, and the judgment remained in 
full force and acquiesced in by their adversary, the de- 
fendants would, perhaps, be estopped to aver the contra- 
ry. But the construction of the court was undoul)ted]y 



DECEMBER TERM, 1881. 475- 



Smith V. O^Donuell. 



correct. By a blunder of the draftsman, the writings 
failed to embody the contracts of the parties, and, in 
fact, failed to make a contract at all between them. 
They could, consequently, only be looked to as mem- 
• oranda, from which, in connection with the parol proof, 
to ascertain what were the real contracts. 

The next error assigned is, that a party plaintiff 
cannot, at law, disregard the written contract, and re- 
cover upon a parol agreement. But, as we have seen, 
there is here no written contract, and the assign- 
ment fails. 

The last error relied on is, that the proof showed 
that the plaintiff had been fully paid by the defendants 
for his work actually done, and that the verdict of 
the jury was given for the damages occasioned by the 
defendants stopping the work, and that these damages, 
in view of the testimony,, were merely speculative. The 
plaintiff* was permitted, over the objection of the de- 
fendants, to testify as to the amount of the work to be 
done, and the profit he would have made. The plain- 
tiff was asked, and the bill of exceptions says, pressed 

■ 

to make an estimate of the work remaining to be done 
on one or more of the sections included in his con 
tract; and, over the objection of defendants, was asked 
if there might not have been eight or ten or twenty 
thousand cubic yards. His reply was, he thought 
there might be eight or ten thousand cubic yards, 
immediately adding: "But I don't know. I don^t pre- 
tend to say how many yards there were." He was 
then asked, the defendants objecting, how much, in his 
opinion, it would have cost him with his facilities, 



476 NASHVILLE : 



Smith V. O'Donnell. 



when the work was stopped, to remove the remainder 

of the earth to complete the grade. He answered: 
"I think I could have removed it at fifteen cents per 

cubic yard." The defendants were to pay plaintiff 
twenty cents per cubic yard. Plaintiff further testified 
that the work on section 9 was only one-third done 
when the defendants stopped it^ and that it was the 
best paying section on the road. 

^ The testimony was conflicting whether the defend- 
ants had paid to the plaintiff, or upon his order, the 
twenty per cent, reserved. It is uncertain, therefore, 
whether the verdict was not rendered, wholly or par- 
tially, as damages for the breach of the contracts, by 
the defendants in preventing the plaintiff from com- 
pleting the work. There can be no doubt that the 
plaintiff had been at some expense, both of time and 
money, in preparing his sections so as to render the 
remaining work easier. It is certain, also, that he 
sustained damage by the stoppage of the work. The 
defendants, themselves, say that they were damaged by 
the stoppage of the work by the railroad company, by 
reason of their outfit with a view to the carrying on 
of the work, and the same was no doubt true as to 
the plaintiff. It was competent to prove by the plain- 
tiff, or any other witness, the amount of work remain- 
ing to be done, and its probable cost, if these facts 
constituted elements in fixing the damages. It was not 
improper, therefore, in this view, to try to ascertain 
whether the plaintiff could definitely fix the- quantity of 
unfinished work. His answer was not of much value, 
but might go for what it was worth. Unless there was 



DECEMBER TERM, 1881. 477 

Smitlt V. O'Donuell. 

some error in the charge of the court to the jury 
upon the measure of damages^ the rulings of the court 
upon the above questions and answers would not vitiate 
the verdict. 

Upon this point the court said : " If you find that the 
plaintiff was prepared to do the work, and was going 
on with it under his contract, and t\ras ordered off 
from time to time from the section, and ultimately dis- 
missed from prosecuting his work without fault on his 
part, and the defendants were not authorized under the 
contracts to prevent or dismiss him from prosecuting 
the work, then the plaintiff would have a right to re- 
cover such damages as directly and naturally arose out 
of such wrongful act. Actual damages clearly include 
the direct damages, or loss, which the plaintilT sustained. 
There is a class of profits which cannot be recovered. 
They are profits contingent upon future bargains, or 
speculations on different states of the market, and not 
the difference between the agreed price of something 
contracted for, and its ascertained value or cost. For 
instance, if the plaintiff engaged in the work could 
place the cubic yard of earth at fifteen cents, and the 
agreed price was twenty cents, he was damaged five 
cents the cubic yard, and so on with the solid rock 
or loose rock, if the proof shows the difference. In 
other words, the loss would, among other things, be 
the difference between the cost of doing the work, and 
the price agreed to be paid for it, and any other 
direct damages he sustained by a breach of the con- 
tract.^' 

There is clearly no error in this charge, so far as 



478 NASHVILLE: 



Smith V. O'DonnelL 



it declares that the plaintiff was entitled to recover, as 
damages for the breach of the contract by the defend- 
ants in not permitting him to complete the work, the 
difference between the cost to him of doing the work, 
and the price to be paid for it. This difference was 
the inducement to enter into the contract on the part 
of the plaintiffs, and to deprive him of it, when the 
other party has broken the contract, would be unjust. 
The profit of which a contractor is deprived by the 
refusal of his employer to allow him to proceed with, 
and complete the work, is a proper measure of dam- 
ages: Oliver v. Morgan, 10 Heisk., 322; The Phila- 
delphia & G. R. R. Co., V. Howard, 13 How., 320. 
"Wherever," says Mr. Justice Curtis, in the last of 
these cases, " profits are spoken of as not a sub- 
ject of damages, it will be found that something 
contingent upon future bargains, or speculations, or 
states of the market are referred to, and not the dif- 
ference between the agreed price of something con- 
tracted for and its ascertainable value or cost." And 
see Pettee v. Tennessee Manf. Co., 1 Sneed, 381. 

But the plaintiff was permitted, over the objection 
of the defendants, to testify that during the progress 
of the work he got in debt, and ^ave a deed of trust 
on his stock, consisting of 14 horses and mules and 
13 carts, to one of his creditors; that when the work 
stopped, the creditor foreclosed .the trust, and sold the 
stock at a great sacrifice, the stock not bringing half 
their value; that this was a heavy loss to him; that 
another creditor levied on his tools when he was leav- 
ing, and sold them for his debt, although plaintiff bad 



DECEMBER TERM, 1881, 479 

' ' ■ ,11,1 

Smith r. O'Donnell. 

given him an order on the defendants for his claim. 
It is very clear that the loss of the plaintiflF by rea- 
son of these acts of his creditors, if the demands were 
just, was damnum absque injuria. It was his misfor- 
tune that he was not prepared to meet his liabilities 
to prevent a sacrifice of his property. Tlje loss was^ 
not the proximate consequences of the defendants' breach 
of their contracts, nor such as could have been within 
the contemplation of the parties when the contract was 
made. The contract itself must give the measure of 
damages: State v. Ward, 9 Heisk., 132. His Honor 
charged the jury that they might allow as damages for 
the breach the probable profits of the contracts, as 
above explafhed, *^and any other direct damages he sus- 
tained by the breach.'' And by allowing the testi- 
mony in question to go before the jury, he must have 
intended that the jury should look to it in ascertain- 
ing the direct damages. In this, he was in error. 
Reverse and remand. 



480 NASHVILLE : 



Whitworth r. Thcnupson. 



8L480 
18L 113 

Whitworth v, Thomi'SOn. 

1. S<;iRE Faciah. JiiKticei^ Judgment. A tvire fctcias ipsued by a justice re- 

citing the rendition of a judgment by his predecessor in office, more 
tlian thirteen years l)€fore, in favor of the phiintiff against one defend- 
ant, which was stayed by the other defendant, that a Bin all payment 
had been made leaving the residue of the judgment in full force; that 
the books of the i)redecessor had been mutilated, and that the judgment 
could not be found ; and directing the officers to make known the 
facts to the defendants, and to summon them to appear before the 
justice at a given time to show cause why the judgment should not be 
revived, is a scire facias to revive the judgment, which the justice was 
authorized to i<sue, and which contains all material averments. 

2. Same. Same, Trial in nrruit ocuri. If, on the trial of the action in 

the circuit court on the scire facias^ the only evidence introduced was 
ofTered by the i>laintiff, and Avas directed solely to the establishment 
of the original judgment, the issue would be record or no reconi and 
triable by the court, and the judge might properly instruct the jury 
to find the facts to l)e as established to his satisfaction by the record j 
and a variance l)etween the judgment as proved and the judgment as 
recited in the acire facian would not be fatal, there being no exception 
to the admission of the evidence 6n the ground of the variance, and 
the court being satisfied that the judgment produced was the judg- 
ment intended to ]>e revived. 

3. Same. May be amended, to conform to record. It would have been compe- 

tent for the trial court, in such a case, and eminently proper, if ex- 
ception had been taken to the evidence because of the variance, to 
have permitted the acire facias to l)e amended to conform to the record 
of the orififinal judgment. 

4. Same. Proper judgment on sci. fa. The proper judgment in favor of 

the plaintiff", upon a scire facias to revive, is that the original judg- 
ment stand revived, and that the plaintiff have execution against the 
defendants therefor, with interest and costs, and the costs of the pro- 
I cecding. ^ 

I 6. Same. Judgment in eircuit court uptm appeal from justice. Where the ac- 

tion on the scire facia.^ is tried in the circuit court, upon apjieal from 
the justice, the court should render such a judgment as the justice 



DECEMBER TERM, 1881. 481 

Whitworth v. Thompson. 

ought to have rendered, without a procedendo, and, upon a further 
appeal to this court, the judgment creditor \n entitled to the same 
judgment. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of David- 
son county. N. Baxter, J. 

E. H. East for Whitworth. 

Guild & Dodd for Thompson. • 

Cooper, J., delivered the opinion of the court. 

On December 16, 1874, T. D. Cassetty, a justice 
of the peace, issued a scire facias , which recited that 
it had been represented to hira by affidavit of D. F. 
Thompson, that he, Thompson, about January 1, 1861, 
before W. D. Robertson, the predecessor in office of 
Cassetty, had recovered a judgment against John F. 
Edmondson, for $92 and costs, which was stayed by 
E. D. Whitworth ; that there had been paid on the 
judgment about January 20, 1862, $20, leaving the 
residue in full force and effect and unsatisfied ; that 
the books of said Robertson had been torn and other- 
wise mutilated, and the judgment, after diligent search, 
could not be found; that Thompson demanded an ex- 
ecution upon the judgment from Cassetty as the sue-, 
cessor of Robertson; and the said scire facias, upon 
these recitals, directed the proper officer to make known 
the facts to the said Edmondson and Whitworth, and 
to summon them to appear before Cassetty on a given 

day, and show cause, if any they have, why said judg- 
31— VOL. 8. 



482 NASHVILLE : 



Whit worth v, Thompson. 



ment should not be revived against them. The scire 
facias was made known to the parties named, who a[>- 
peared, and made defense. The justice rendered judg- 
ment in favor of the defendants, and the plaintiff ap- 
pealed. The cause was called for trial in the circuit 
court on May 15, 1876, when the defendants moved 
to quash the scire facias, but the motion was over- 
ruled. On the trial, the jury found that the original 
judgment Was rendered by Robertson on February 27, 
1860, for $94,21, 4:hat the judgment was entitled to a 
credit of $40, as^ of the 25th of November, 1861, and 
that the balance then due, including interest, was 
$119,86. The court, thereupon, rendered judgment as 
follows : " It is therefore considered by the court, that 
the plaintiff* recover of the defendants, John F. Ed- 
mondson and E. D. Whitworth, his damages, as by 
the jury in form aforesaid assessed, together with all 
the costs of this cause expended, for which let Ji, fa, 
issue; and it is further ordered that procedendo issue 
to Cassetty, successor to W. D. Robertson, to issue ex- 
ecution for $119,86, and costs of suit against the prin- 
cipal and stayor as security in favor of plaintiff, and 
fi, fa. issue from this court against defendant and se- 
curity for the costs of this court." The defendant, 
Whitworth, appealed in error. 

The error relied upon for reversal is in the ruling 
of the court upon the motion to quash the scire facias. 
The motion was to quash the scire facias " because it 
states no cause for which a scire facias would lie at 
law." 

The scire facias, which was issued December 16, 



DECEMBER TERM, 1881. 483 

Whitworth v, Thompson. 

■ ■ ■ ■ ■ ■ fc ^ 

1874, purports on its face to be based upon a judg- 
ment recovered about the first of January^ 1861/ against 
one defendant, and stayed by the other, and requires 
the defendants to show cause why the judgment should 
not be revived a^inst them. It is in form a scire 
facias between the original parties to revive a judg- 
ment. 

At common law, the failure to sue out execution 
within a year raised a presumption of the payment or 
release of a judgment. If, in fact,* the judgment re« 
mained unsatisfied, a scire facias to revive lay in real 
actions, and was given by an early English statute in 
personal actions : Hess v. Sims, 1 Yerg., 143 ; Deber* 
ry V. Adams, 9 Yerg., 52 ; 6 Com. Dig. Pleader, 3 
L., 6; Tidd. Pr., 1103. The grant of the writ by 
statute was general, "« forte a majore tempore transaxAo 
facto fiierii ilia recognito,^ etc., if the recognizance or 
record be of a longer time than one year. It seems, 
therefore, to have been held that while the writ must 
be sued out where the judgment lay for a year with- 
out execution, yet it would lie in every case where the 
whole debt had not been levied, even if execution is- 
sued within the year: Stille v. Wood, Coxe, 118; 4 
Bouv. Inst., sec. 3702. And the validity of the writ 
within the year appears to be recognized in an early 
case cited by the text writer: Roberts v. Pising, Roll. 
Ab., 900. The mode of obtaining the writ depended 
on the time after the judgment when it was sued out: 
2 Tidd. Pr., 1105. The practice in this regard was 
held to prevail in this State in Keith v. Metcalf, i 
Swan, 74, a decision made in 1852 upon a scire /«- 



484 NASHVILLE : 



Whitworth v. Thompson. 



das issued in August, 1850. Previously, by the act 
of 1849, ch. 37, brought into the Code in sec. 2987, 
it was provided that an execution might be sued out 
at any time after judgment, whether an "exeeution had 
been run within the year or not. The new remedy 
thus given did not, upon a well settled principle, in- 
terfere with the pre-existing remedy: Hoggat v. McOro- 
ry, 1 Tenn., 8; Henry v. Keys, 2 Head, 488. 

The Code, sec. 2776, having prescribed a limitation 
of ten years to the right of action on a judgment, we 
have held, in obedience to the legislation intent, that 
the lapse of that period would prevent the issuance of 
execution unless the judgment be revived by scire for- 
das: MoGrew v. Reasons, 3 Lea, 485. And, inasmuch 
as the right to revive would be barred by the lapse 
of the time if relied on, the right to revive by scire 
faoias sued out within the ten years would seem to 
follow, of course, unless the creditor be required to 
sue upon the judgment, which he may do at any time. 
Be this as it may, the right to the scire faoias after 
the ten years is conceded : Lain v. Lain, 3 Baxt., 
30; Gregory v. Ghadwell, 3 Cold., 902; Fogg v. Gibbs, 
8 Baxt., 464. Obviously, therefore, the scire fa/Aas 
in this case, sued out to revive a judgment rendered 
more than thirteen years before, was proper, and con- 
tains all the averments necessary to sustain it for that 
purpose. For it recites the judgment, and shows that 
it is in full force and unsatisfied, and the lapse of 
the ten years. And by statute, a justice of the peace 
is authorized to issue a scire facias in all cases before 
him, when necessary, in the same manner as the writ 



DECEMBER TERM, 1881. 485 

Whitworth v. Thompson. 

is issued by courts of record : Code, sec. 3576. The 
only departure from the ordinary form of a scire fa" 
das is in requiring the defendants to show cause why 
the judgment should not be revived, instead of show- 
ing cause why plaintiff should not have execution of 
his judgment. The object being to revive the judg- 
ment, the change of phraseology is clearly immate- 
rial. 

The argument submitted on behalf of the plaintiff 
in error is not addressed to the proceeding treated as 
a sdre facias to revive the judgment. It goes upon 
the assumption, that the object of the proceeding was 
to supply the original judgment. In this view, it is 
perhaps correctly argued that the remedy for the pur- 
pose was not by scire facias. The judgment might 
have been treated as still existing, although the record 
of it was lost or destroyed: Boyers v. Webb, 1 Lea, 
700; Faust v. Echols, 4 Cold., 397; RandaU v. Payne, 
1 Tenn. Ch., 145. But the scire facias is plainly to 
revive the judgment, not to supply it, and the reci- 
tal of the loss of the record would not change its 
character. A scire facias will lie to revive a lost 
judgment: logg v. Gibbs, 8 Baxt., 464. 

It is suggested that the affidavit on which the scire 
faxyias issued does not aver that the plaintiff in error 
was a party to the judgment, and consequently furnishes 
no basis for the proceeding against him. But the 
scire facias itself does recite that Whitworth was a 
party defendant to the judgment by having become 
stayor, and the motion to quash is directed to the 
sufficiency of the scire fadas. The absence of an affi- 



486 NASHVILLE : 



Whitworth v. Thompson. 



davit altogether, it has been held, cannot be made a 
ground of objection in this court: Fogg v. Gibbs, 8 
Baxt.. 464. And, a fortiori^ a defective affidavit would 
be equally unavailable. The affidavit does state all 
that was essential to the suing out of the writ, namely, 
the recovery of judgment, the lapse of over ten years 
from its rendition, and that it remains in full force 
and unsatisfied. It was not necessary to set out any 
payments made, and the balance due: Oarson v. Hick- 
ardson, 3 Hayw., 231. Nor was it material to aver 
that execution had not been sued out within the year: 
Weaver v. Eeeae, 6 Hum., 418; 2 Harr. Ent., 460. 

It is also said that the original judgment, which 
was supposed to have been lost, was produced on the 
trial, and therefore the object of the writ was obtained. 
But this position is based upon the assumption that 
the scire facias was sued out to restore, not to revive 
the judgment. The right to revive would not depend 
upon the existence or non-existence of the record evi- 
dence of the judgment, either at the suing out of the 
writ, or at the trial. 

The bill of exceptions shows that the plaintiff in. 
error introduced no proof on the trial, and that the 
proof of the defendant in error was only such as tended 
to establish the judgment sought to be revived. In 
view of the evidence, the only defense which could 
have been made was nul tiel record, the suspension of 
the statute of limitations during the war preventing the 
bar of ten years. The issue of nul tiel record was 
triable by the court, and the trial judge might well 
instruct the jury to find the facts established to his 



DECEMBER TERM, 1881. 487 

Whitworth i;. Thompson. 

satisfaction by the record. The date and amount of 
the judgment produced did not correspond exactly with 
the figures of the scire facias. If exception had been 
taken to the evidence on the ground of the variance, 
it might have been excluded unless the judgment cred- 
itor had been permitted to amend the writ. No ex- 
ception was taken, and the court was justified in find- 
ing that the judgment produced, was the judgment 
intended to be revived. If exception had been taken 
to the • evidence, it was within the power of the court, 
and clearly proper under the circumstances, to have 
allowed the scire facias to be amended so as to con- 
form to the original record: Bryatit v. Smith, 7 Cold., 
112; Code, sees. 2872, 2875,^4177; Thompson v. D(mgh- 
erty, 3 J. J. Mar., 564. 

The court below had some diflBculty as to the proper 
judgment to be rendered, both as to the amount, and 
as to the execution. A new judgment, including the 
interest to the date of rendition, has not been usual 
in such eases, nor was a procedendo necessary. The 
court should have ordered that the original judgment, 
as found, stand revived, and that the plaintiff have 
his execution against the defendants therefor, with in- 
terest and costs, and the costs of the scire facias, sub- 
ject to the credit found as of the proper date: 2 Tidd. 
Pr., 1126; Mcintosh v. Paul, 6 Lea, 46; Taylor v. 
Miller, 2 Lea, 153; Woo/ston v. Gale 4 Halst., 32; 
Brown v. Chesapeake & Ohio Canal Covipany, 10 Rep., 
649. The judgment of the circuit court should have 
been such as the justice ought to have rendered, and 
•for execution without a procedendo: Code, sec. 3167. 



488 NASHVILLE: 



Insurance Co. v. Heidel 



The appellee is entitled to the same judgment in this 
court against the appellant, and his surety of appeal: 
Id, But the appellee will pay the costs of this court, 
because of the erroneous entry of the judgment below. 



Knickerbocker Life Ins. Co., v. Heidel. 

1. Damaqes. Contract, In simple breaches of contract, the contract itaef 

must give the measure of damages, and a jury would not be war- 
ranted in estimating the damages a^ in an action of tort or quasi tort. 

2. Life Insurance. Damages. The contract of life insurance is based 

upon statistics, and governed by settled rules, and the damages re- 
sulting from a breach thereof by the insurer, admit of being ascer- 
tained with unusual accuracy. 

3. Same. Same. Reserve fund. A part of every premium paid on a life 

policy is absorbed in the running expenses of the business; a part is 
the compensation of the insurers for the risk during the period for 
which the premium Ls paid, to be used in the payment of losses on 
other policies or divided as profits; and the remainder is accumu- 
lated on interest as a reserved fund to respond to the demand of the 
particular policy, and constitutes its equitable value. Damages are 
not allowable beyond such value for the breach of a stipulation to re- 
return a fair proportion of the premiums, if applied for before the 
policy expires. 

4. Same. Prospedvx not pari of contract. A prospectus of an insurance 

company is not made a part of the policy by an endorsement on the 
policy that it may be had gratis, and its statements would only be 
representations, not parts of the contract. 

6. Same. Entire contract. Non-payment of premiums. A contract of insu- 
rance for life is an entire contract, subject to discontinuance and for- 
feiture for non-payment of premiums, and subsequent representations 



DECEMBER TERM, 1881. 489 

Insurance Co. v. Heidel. 

of the officers or agents of the insurance company, or subsequent prom« 
ises or agreements not based upon a new consideration, will not enter 
into the original contract. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of David- 
son County. N. Baxter, J. 

R. McPhail Smith for Ins. Co. 

John Ruhm for Heide). 

CoOper, J., delivered the opinion of the court. 

On May 7, 1866, William Heidel took from the 
Knickerbocker Life Insurance Company a participating 
policy on his life for $5000, payable upon his death 
to Rosalie Heidel, his wife, at an annual premium of 
$153,20, one-half in cash, and the other half by note. 
The premium was paid and secured as required each 
year up to Muy 7, 1875, included. On May 3, 1876, 
Heidel, in the name of himself and wife, wrote to 
the company that he wished to cancel the policy, and 
requested the company to notify him, if he desired a 
return of premium under a clause in the conditions on 
the back of the policy, how much it would pay; or, 
if he preferred a paid up policy, for what amount the 
company would issue it. The company replied, stating 
terms, which were not satisfactory, ' And on August 
19, 1876, this action was brought. The case was 
tried by a jury, and verdict and judgment rendered 
for plaintiflF. Defendant appealed in error. 

The declaration contained four counts. The first 



490 NASHVILLE : 



Insurance Co. r. Heidel. 



count is for money received. The second count is for 
money '^ wrongfully, oppressively, fraudluently and deceit- 
fully, and under fraudulent promises, guarantees and 
representations, received and collected from the plain- 
tiff by the defendant without ju8t cause or considera- 
tion." The third count is in substance the same, only 
specifying in addition that the money was collected 
from the 7th of May, 1866, to the 7th of May, 1876. 
The fourth count sets out the contract between the 
plaintiff and defendant, and the taking out of the policy, 
and avers that the plaintiff has complied with bis part 
of the contract, and the defendant has failed and re- 
fused to comply with its promises in the following 
particulars : 

Ist. It has not cancelled the premium notes as it 
fraudulently promised to do, which promise was one of 
the inducements to the plaintifll's entering into the 
contract, and executing the notes. 

2. It has refused to return the plaintiff any part 
of the premium paid, although applied to for the pur- 
jK)8e, before the policy expired. 

3. It refuses to issue the plaintiff or his wife a 
paid up policy for the amount or value of the pre- 
miums already paid, although requested. 

The only evidence introduced by the plaintiff be- 
low on the trial, consisted of his own deposition, and 
the exhibits thereto, viz, the policy, the annual state- 
ment of accounts furnished by the company to plain- 
tiff, the plaintiff's notes and written acknowledgments 
in relation thereto, the several receipts of the compa- 
ny, and some extracts from a prospecfui^ of the com- 



DECEMBER TERM, 1881. 491 

Insurance Co. v. Heidel. 

— ^ — 'I 

pany which was furnished to plaintiff about the time 
the policy was taken out. 

The plaintiff testified that the agent of the compa- 
ny had represented to him, as an inducement to insure, 
that the dividends of the company in the past had 
paid the premium notes, and in the future would do the 
same thing; aad that the cash payments would decrease 
every year. The prospectus also stated that the div- 
idends for the last decade had averaged 72 per cent.; 
that they had, at no time, been less than 45 per cent.; 
and that they had always covered the amount of the 
premium not^s. 

One of the conditions on the back of the policy 
was the following: "In case the holder of this policy 
wishes ( to cancel it after three annual premiums have 
been paid, a fair proportion of the premiums will be 
returned, if applied for before the policy has expired.'' 
The application by letter was proved as hereinbefore 
stated. 

The prospectus of the company contained this pro- 
vision: *^Not a single policy is rendered invalid, if,, 
at the non-payment of the premium, the assured ap- 
plies to the company for a paid up policy to the 
amount of payments already made.'' 

The charge of the trial judge makes no direct ref- 
erence to the pleadings. It recites, however, the sub- 
stance of the fourth count in stating the contract claimed 
by the plaintiff* to have been made, and the breaches 
complained of. It plainly proceeds, moroever, upon the 
hypothesis that the plaintiff is suing, both for a breach 
of the contract, and for the recovery of the money 



492 NASHVILLE: 



Insuranee Co. v. Heidel. 



paid by him, upon the ground that the contract was 
avoided ah initio by the fraud of the defendant. For, 
he says : " If the defendant by fraud induced the plain- 
tifiF to pay his money, the contract was void from the 
beginning, and the plaintiff is entitled to recover back 
the money he has paid, and interest, if you think he 
ought to have interest. If you find that there was 
no fraud, but that defendant has broken its contract, 
the plaintiff would be entitled to such damages as he 
has sustained by the breach of the contract." The 
learned counsel of the appellee necessarily concedes the 
fiict in his able argument, and says that it is plain 
to him that the jury went off on the judge^s second 
alternative, viz, " that the plaintiff in error was liable 
for breach of contract in refusing to return a fair 
amount of the cash premium paid, and. in refusing to 
issue a paid up policy." His Honor, the tris^l judge, 
does reci e in full the three breaches relied on in the 
fourth count of the declaration, namely, to repeat them 
in short: 1st. That the company had not cancelled the 
premium notes. 2d. That it refused to return any 
part of the cash premiums paid. 3d. That it refused 
to issue a paid up policy. The averments of fact in 
the declaration and the proof on which the first of 
these breaches rests, the trial judge treats as represen- 
tations, only bearing on the question of fraud which 
will avoid the contract ab initio. The other two breaches 
he treats as based on the contract, on which the plain- 
tiff is entitled to the alternative relief of damages for 
the breach, if the promises were made in good faith 
and not fraudulently. " With regard to the other rep- 



DECEMBER TERM, 1881. 49S 

Insurance Go. v. Heidel. 

resentations and promises/' he says after disposing of 
the first of the above breaches, " if you believe they 
were made, and made bona fide, with the intent at the 
time they were made to perform them in good faith, 
but afterwards the defendant became unable to perform 
them, or changed its mind and refused to perform 
them, that would not be fraud, but a mere breach of 
contract." 

It will be seen that his Honor's charge is open to 
the criticism of the counsel of the plaintiff in error, 
that upon a count in contract, the question is sub- 
mitted whether that contract is not void ab initio. 
And the count itself, it must be admitted, is so worded 
as to admit of the double construction. But, in the 
absence of any objection to the count in the declara- 
tion on this particular ground in the court below, the 
plaintiff's counsel is justified in treating it as in con- 
tract, and in referring the language of the trial judge 
in relation to the avoiding of the contract ab initio to 
the other counts in the declaration. 

In this view, and considering the verdict as based 
upon the breach of contract, the firet question which 
arises is, whether the jury were governed by the 
proper measure of damages in their verdict. They re- 
ceived on the point no assistance from the testimony 
or the court. For his Honor simply said to them: 
"If you find there was no fraud, but that defendant 
has broken its contract, the plaintiff would be entitled 
to recover such damages as he has sustained by the 
breach of the contract." And he refused to allow the 
company to prove, by an insurance agent of several 



494 NASHVILLE: 



Insurance Co. f. Heidel. 



year's experience, what was a fair preraiuni per annum 
for carrying the risk of $5000 on a life policy, and 

what should be the balance payable in the form of a 
paid up policy after carrying the risk for ten years. 
If, however, the verdict of the jury were for the 
proper amount in view of the nature of the contract 
and the breaches complained of, we would not be in- 
clined to interfere with it, merely because of the want 
of testimony or of proper instructions as to the dam- 
ages. 

The policy was for $5000, in consideration of an 
annual premium of $153,20. The total amount ' of 
premium paid from May 7, 1866, when the policy was 
issued, to the 3d of May, 1877, when the demand of 
a return of premium was made, would be $1532, of 
which $529 were in the note of the defendant in 
error, and $213 had been returned in dividends. The 
verdict could only have been, under the charge, for a 
fair proportion of the premium, or for the value of a 
paid up policy based on the payments made, less the 
outstanding note, and the dividend If we deduct 
the note and the dividend from the total of the 
premiums, the remainder will be $790. And if 
we add to this sum interest from May 3, 1876, to 
March 15, 1877, when the verdict was rendered, the 
aggregate will be about $836. But the verdict was 
for $1257, and was for too much, in any conceiva- 
ble view. 

The learned counsel for the defendant in error ar- 
gues that the jury are the proper judges of damages, 
and that the court will not disturb their verdict, when 



DECEMBER TERM, 1881. 495 

Insurance Co. v. Ileidel. 



tbere is no certain measure of damages^ unless it is 
flagrantly extravagrant. But it has long been settled 
in this State that it is in actions founded on torts, or 
qiuisi torts, that the jury raust have the latitude and 
discretion contended for, there being in such cases no 
certain means by which the court can say what the 
damages ought to be. In simple breaches of contract 
the rule is different, for there the nature of the con- 
tract usually admits of the establishment of certainty 
and precision ; Headrick v. Stewart, 1 Tenn., 476 ; 
McWhirter v. Douglass, 1 Cold., 592. The contract 
itself must give the measure of damages, and if it 
fiiils to do so the damages can ' only be nominal : 
State V. Ward, 9 Heisk., 100, 1^2. The contract of 
life insurance is based upon statistics, and governed by 
well settled rules, and the damages resulting from a 
breach thereof admits of being worked out with unu- 
sual accuracy. The assured, especially in a participa- 
ting policy, becomes an associate with others in a com- 
mon enterprise, and must bear his share of the joint 
risk. The annual premiums are not the consideration 
for the insurance for the particular year, but the grad- 
uated rate in view^ of the entire duration of the policy. 
The graduated rate increases as the insured advances 
in years, and the difference between the rate at one 
age and the rate at a later period constitutes the equi- 
table value of the earlier policy. A well managed 
company will lay up out of the premiums paid a 
reserved fund to cover the increase in the rate, and 
to meet the payment of the policy when it matures. 
It is this equitable value that the companies usually 



496 NASHVILLE : 



Insurance Co. v. Heidel. 



agree to pay in settlement during the life of the policy : 
New York Life Ins. Co,, v. Statham, 93 U. S., 24. 
To repay to the assured all that he has paid in, if, 
at any time during the life of the policy, he demanded 
a return of a fair proportion of the premiums, would 
irot be in accordance with the contract, and would be 
manifestly unjust. A part of each premium paid has 
been absorbed in the running expenses of the compa- 
ny. Another part became the property of the in- 
surer as compensation for the risk during the period 
for which it was paid, and was applied in the payment 
of losses on other policies, or returned to the policy 
holder in dividends'. It is only the remainder which 
is accumulated on interest to respond to the demand 
of the particular policy. The verdict in this case goes 
far beyond any just claim which the defendant in 
error may have for the breach of contract sued on. 

The trial judge, as we have seen, treats the " rep- 
resentations or promises,^' upon which the last two 
breaches of the declaration are based, as parts of the 
contract, and charges the jury that if they were made 
without fraud, a subsequent failure to comply with them 
would constitute breaches of contract, to be looked to 
in estimating the damages. The condition on the back 
of the policy to return a fair proportion of the pre- 
mium paid is a part of the contract. But there is 
no provision of the policy, nor of the conditions an- 
nexed for the issuance to the plaintiff or his wife of 
a paid up policy for any portion of the premiums. 
There is no proof of any stipulation to that effect be- 
tween the parties, even if parol proof were admissible 



DECEMBER TERM, 1881. 497 

Insurance Co. v, Heidel. 

to change the contract. It is the prospectus which 
contains the clause relied on. The statements of the 
prospectus, unless made a part of the contract, would 
merely be representations, like the representations in 
relation to the dividends, and could only be looked to 
on the question of the fraud which would avoid the 
contract. The reference to the prospectus on the back 
of the policy would not change the result, for the ob- 
vious reason that it does not show an intent that the 
prospectus should form a part of the contract. The 
language is: "The prospectus of the company may be 
had gratis by applying at either the principal office 
or to any of the agents : '' Ruse v. Mutual Benefit 
Life Ins. Co,, 23 N. Y., 516; Farmer^ a Ins. & Loan 
Co., v. Snyder, 16 Wend., 481 ; Burritt v. Saratoga 
County Mutual Fire Ins. Co., 5 Hill, 188. 

The trial judge, upon the request of the defendant 
in error, charged as follows : " The contract of life 
insurance, entered into between these parties, was a con- 
tinuous contract, that is, one to be ratified and con- 

■ 

firmed annually, or one that may be rejected by the 
non-payment of premiums. It follows, therefore, that 
representations, promises or agreements, made subse- 
quently to the original contract, either orally or by 
written or printed statements, enter into the contract, 
the same, and under the same principles and conditions 
as the original representations, and the original policy." 
But the idea that the contract of life insurance was 
continuous from year to year was treated by the Su- 
preme Court of the United States as "the suggestion 
32 — VOL. 8. 



498 NASHVILLE : 



Insurance Co. v. Heidel. 



of ingenious counsel/' The contract is not an as- 
surance for a single year, with a privilege of renewal 
from year to year by paying the annual premium, 
but it is an entire contract of assurance for life, sub- 
ject to discontinuance and forfeiture for non-payment 
of any of the stipulated provisions : New York Life 
Ins. Co,, V. Statham, 93 U. S., 30; Cohen v. New 
York 3IuL Life Ins, Co., 50 N. Y., 610. If, there- 
fore, his Honor, the trial judge, meant, as the words 
seem to imply, that representations made subsequently 
to the original contract by the agents or officers of 
the insurance company, or any promises or agreements 
not based upon a new consideration, would enter into 
the original contract, he was clearly in error. 

No question was made in the court below upon the 
right of the defendant in error to sue in his own 
name upon the contract embodied in a policy of in- 
surance on his life taken out for the benefit of his 
wife, under Code, sec. 2478 : Southern Life Ins. Co.^ 
V. Booker, 9 Heisk., 606, 618. Nor was ]any point 
made upon the right of the defendant in error to avoid 
the contract by a suit to which his wife was no party: 
North Am. Ins. Co. v. Wilson, 111 Mass., 542; United 
States Life Ins. Co. v. Winght, 8 Ins. L. J., 169; 
Martin v. jJ'jtna Life ' Ins. Co. 2 Leg. Rej). 87. 

The charge of the court is, moreover, altogether si- 
lent upon the effect of the annual renewals of the 
policy for so many years in waiving any fraud in the 
original transaction, and ratifying the contract. These 
omissions might not of themselves authorize a r«- 



DECEMBER TERM, 1881. 499 

Insurance Co. ». Mathews and Wife. 

■■ ■ ■ ■ ■ — . * ■ 

versal in the absence of any action in the court be- 
low on the part of the plain tiflF in error calling the 
attention of the judge to them, but they make us bet- 
ter satisfied with the result reached. 

Reverse, and remand for another trial. 



Nashville Life Ins. Co., v. Mathews and Wife. 

1. Pleading and P«ACTioe. Declaration. Effed of a verdict. An imper- 

. feet statement of a cause of aotiou in a declaration, such as the fsil- 
ure to allege a special demand necessary to the recovery, or to aVer 
the time of breach, will be cured by verdict. 

2. Life Insurance. Contrail. Mmaure of damages. The contract of life 

insurance is based upon statistics, and subject to settled rules which 
admit of being worked out with mathematical accuracy, and the 
damages resulting from a breach thereof by the insurer, admit of 
being ascertained with precision. 

3. Same. Premium. Reaei^ve fund. A part of every premium paid on a liie 

policy is absorbed in the exi)cnsesof the businens; a part is earned by 
the insurer in carrying the risk during the period for which it is 
paid, to be used in the payment of losses on other policies or di- 
vided as profits, and the remainder is accumulated on interest a* a 
reserved fund to respond to the demand of the particular policy, 
and constitutes its ecpiitable value. 

4. Same. Conlra/U. Damage.^. Reserve fund. In an action upon a nau- 

tual or participating life policy to recover damages for the breach of 
a stipulation that it is non- forfeiting, if application is made for a set- 
tlement while the policy is in force, and after three annual |M«e- 
miums have been paid, it is error to charge the jury that the reserved 
fund would not control in fixing an equitable settlement, and that 
the ability or inability of the company to pay, could not be looked lo». 



8L4W 
13L 84 
14L 81 



500 NASHVILLE: 



Influrance Co. v. Mathews and Wife. 



5. Same. Valiie of paid up policy. A holder of a participating policy is 

not entitled to recover more than his fair proportion of the reserved 
fund, or the value of a paid up policy which the proportion will buy, 
but the presumption in the case of a company in active business 
would be that it had ready the full share of the policy holder. 

6. Same. Evidencej parol. Statement of agent. Parol testimony is not ad- 

missible to explain a written contract, and it was therefore error, in 
an action for the breach of the non-forfeiting clause of a policy of 
life insurance, to admit oral evidence that, at the time of taking out 
the policy, the plaintiff enquired of the agent of the company the 
meaning of the clause, and was informed that he would receive a 
paid up policy for the full amount of the money paid by him, and to 
charge the jury, if they found the facts that way, that the company 
should have given such a paid up policy, and they should render a 
verdict for the value of such a policy. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of David-^ 
son county. N. Baxter, J. 

Thruston & Bradford for Ins. Co. 

J. D. Brien for Mathews and wife. 

Cooper, J., delivered the opinion of the court. 

On July 15, 1868, the Nashville Life Insurance 
Company issued to Alexander Mathews and Martha 
A., his wife, a policy of insurance, upon the plan of 
permitting the assured to participate in the profits, on 
their joint lives for the sum of $2,000, payable to the 
survivor upon the death of either, in consideration of 
$51.55 in cash paid quarterly in advance. One of the 
persons insured was then aged 53 years, and the other 
60 years. The assured paid the premiums for one 
year in money, after which time they were permitted 



DECEMBER TERM, 1881. 501 

Insurance Co. v. Mathews and Wife. 

■ 

to pay $34.55 of each quarterly premium, and to re- 
tain the residue in the form of a loan, the interest 
being payable quarterly in advance. Under this ar- 
rangement, the premiums continued to be paid up to 
the 15th of April, 1875, inclusive. The cash pay- 
ments at that time amounted to $1145.15, including 
interest on the loans, and the loan aggregated $319.45. 
The dividends made to the assured during the time 
were in all $94.62. The policy contained the follow- 
ing condition : " This policy is non-forfeiting, if ap- 
plication for settlement is made while it is in force, 
and after three annual premiums have been paid.^' 
While the policy was still in force, Mathews applied 
for a settlement under this provision. The company in 
reply oflPered a paid up policy of $540, subject to the 
• outstanding note on loan of $319.45, and the payment 
of interest thereon annually in advance. The net 
amount due on the policy, or its equitable value was, 
therefore, $220.55. The proposition, not being satis- 
factory, this suit was brought on September I, 1875, 
by Mathews and wife against the company. The jury 
found a verdict in favor of the plaintiff for $988.50, 
with interest from the time of the demand for a set- 
tlement. Motions for a new trial, and in arrest of 
judgment were overruled, and the company appealed in 
error. The court, however, required the recovery to 
be reduced to $750. 

The declaration contained two counts, one on the 
policy, and the other for money received. The first 
count made profert of the policy, but set out no stip- 
ulation on the part of the company except the non- 



502 NASHVILLE : 



Insurance Co. v. Mathews and Wife. 



forfeiting clause above quoted, and averred that the 
plaintiffs had performed their part of the contract, but 
that the defendant refused, aud still refuses to do so. 
This count is, it must be admitted, meagre in its 
averments, for it neither avers an application for a 
settlement nor that it was made during the life of the 
policy, and the defendant below has some ground for 
insisting that the motion in arrest of judgment should 
have been sustained. The rule always has been in this 
State that an imperfect statement of a cause of action 
in a declaration is cured by verdict: Anderson v. Ready 
2 Tenn., 205. And the rule applies when the im- 
perfection consists in the failure to allege a special de- 
mand which was a condition to the right of recov- 
ery, or to aver the time when the breach occurred: 
Rodgera v. Love, 2 Hum., 417; 8helby v. Hearne, 6 
Yerg., 512; Read v. Memphis Gayoso Oas Co., 9 
Heisk., 545. The only breach which could possibly 
be embraced in the declaration was the refusal to set- 
tle, and there could have been no recovery except 
upon proof that an application for a settlement was 
made while the policy was in force. The bill of ex- 
ceptions shows that the proof was made. 

The parties themselves, in their negotiations for a 
settlement, and again on the trial, practically construed 
the clause of the policy sued on as entitling the as- 
sured, under the circumstances of the case, to a paid 
up policy. The contest was over the value of the 
policy to which they were entitled. The plaintiffs 
proved the application for a settlement, and the reply 
of the company. They introduced no testimony to es- 



DECEMBER TERM, 1881. 503 

Insurance Co. v. Mathews and Wife. 

tablish the actual amount of the paid up policy to 
which they supposed themselves entitled, nor, of course, 
its value. The company produced the testimony of 
experts to explain the operations of a life insurance 
company, upon the plan disclosed by the plaintiffs' 
policy, and to show, upon the data of the policy, the 
payments made thereon, and the time it had run, the 
reserve fund of the policy at the date of the appli- 
cation, according to the insurance laws of this State. 
This testimony tended to show that the reserve fund 
was $474, that large and prosperous companies could 
afford to pay to withdrawing policy holders three- 
quarters of the reserve fund, and small and struggling 
companies about twenty-five per centum; and the de- 
fendant, the Nashville Insurance Company, could not, 
with safety to its other policy holders, afford to pay 
two-thirds of the reserve fund. 

The court charged the jury, in substance, on this 
point of the case, that they might find what sum in 
cash, under all the facts and ctrcumstances, was a just 
and reasonable settlement at the time of the applica- 
tion, with interest, if they saw proper to give interest; 
that the facts to be looked to in ascertaining the sum 
would not be the ability or inability of the company 
to pay, but the age of the parties assured, their health 
and likelihood of life (for w^ich purpose the jury 
might refer to the established tables of the probable 
duration of life), the amount of premiums paid* and 
the risk run in the intervening time; that whatever 
this company, or other companies, might set apart as 
what was called a reserved fund, to meet the risk on 



504 NASHVILLE: 



Insurance Co. v. Mathews and Wife. 



the life of the assured, would not control the jury in 
fixing an equitable settlement; and that each case 
should stand upon, and be governed by its own facta. 
It was settled at an early day in this State, and 
has been since adhered to, that damages for the breach 
of contract can only be such as are incidental to, and 
directly caused by the breach, and may be reasonably 
supposed to have entered into the contemplation. of the 
parties; not speculative, accidental or remotely conse- 
quential damages. The contract itself must give the 
measure of damages, and, if it fails to do so, the dam- 
ages can only be nominal: Hendrick v. Staoart, 1 
Tenn., 476; State v. Ward, 9 Heisk., 100, 132; Fos- 
ter V. Water Gompany, 3 Lea, 46; Winters v. Fleece, 
4 Lea, 551. The contract of life insurance is, iinore 
than most contracts, based upon statistics, and ' gov- 
erned by general rules which admit of being worked 
out with mathematical accuracy.. A person insured, 
especially upon a mutual or participating plan, does 
not stand alone, but is one of a large number of per- 
sons in a common venture, whose case cannot be treated 
as one to be governed by its own facts. He must 
be content to bear his share of the joint risk or bur- 
den. The annual premiums of a life policy are not 
the conf^ideration for the insurance for the particular 
year, but the graduated rate for the entire duration of 
the policy. The price of a new policy increases as 
the individual advances in years, and the diflFerence be- 
tween the average at one age and the average at an- 
other age constitutes the equitable value of the earlier 
policy. If the company has been properly managed, 



DECEMBER TERM, 1881. 505 

Insurance Co. t'. Mathews and Wife. 

it will have laid up a reserved fund equal to the 
equitable value, to be appropriated to the payment of 
the policy when it falls due. It is this equitable 
value that the companies agree to pay in settlement 
during the life of the policy : Cohen's casCy 50 N. Y., 
610; New York Life Ins. Go., v. Statham, 93 U. S., 24. 
A part of each premium paid on a life policy is 
absorbed in paying the running expenses of the com« 
pany. Another part compensates the insurer for the 
risk during the period for which the premium is paid. 
It constitutes a fund for the payment of losses on 
other policies, and a portion of it may be returned to 
the holder of a mutual or participating policy in the 
shape of dividends. Another part of each premium is 
retained by the insurer, accumulating on interest, to 
respond to the demand of the policy when it matures 
or becomes a claim. The proportion of the premium 
required for this purpose is fixed approximately by cal- 
culation, and at any period between the issuance of 
the policy and its maturity, ought to pay the addi- 
tional cost of taking out a new policy at the highest 
rate the assured would be required to pay by reason 
of his advance in years : In re Albert Life Ins. Co., 
L. R., 9 Eq., 706; HoJdrich's case, L. R., 14 Eq., 
72; Smith v. St. Louis Mutual Life Ins. Co., 2 Tenn. 
Ch., 741. The fund thus obtained is called the re- 
serve, and constitutes, if the company has been well 
managed, the equitable value of the policy. It is now 
regulated in this State by the act of 1877, ch. 108, 
which provides: '^That every company doing a life in- 
surance business in Tennessee, whether chartered by the 



506 NASHVILLE: 



Insurance Co. v. Mnthews and Wife. 



laws of Tennessee, or any other foreign state or govern- 
ment, shall be required, for the protection of its policy 
holders, to keep invested, at all times, a sum sufficient 

to re- insure all outstanding risks, calculated upon the 
American experience table of mortality at four and 
one-half -per cent, on mutual or participating policies, 
and at six per cent, on stock or non-participating 
policies, which amount shall be invested in bonds, se- 
curities or mortgages (if mortgages, on real estate 
worth double the sum loaned), to be certified as safe 
and worth this amount by the insurance commissioners 
of the State in which the company was organized." 

It is obvious from this view of the nature of the 
contract of life insurance, and the settled law of this 
State in regard to the measure of damages on breaches 
of contract, that his Honor 'w^as in error in limiting 
the jury, in ascertaining the sum to which the plain- 
tiffs might be entitled, to the facts enumerated by him, 
and withdrawing from their consideration the reserved 
fund of the policy sued on, and the financial ability 
or standing of the company. The reserve constitutes, 
as we have seen, the equitable value of the policy. 
And the plaintiffs, by their participating policy, became 
qtidsi partnerH in the company, and could not demand 
more than their fair proportion of the reserved fund. 
The presumption in the case of a company in active 
business — a " going company " to use the words of an 
eminent English judge — would be that the reserve had 
been properly managed, and that the company had on 
hand, ready to meet the demand, the full share of each 
|K)licy holder. The burden of proof would be on the 



DECEMBER TERM, 1881. 507 

Insurance Co. v. Mathews and Wife. 

company to show the contrary. The assured would, 
upon application under the stipulation sued on in this 
case, be entitled to a paid up policy for such an 
amount as could be purchased by the reserve, or so 
much thereof as the assured could justly claim. It 
was so -held by this court, where the policy was put 
an end to by the late war, in Crawford v. ^na Ins. 
Go.y 5 Cent. L. J., 100, an opinion delivered by judge 
Turney. The recovery in an action at law for the 
breach of the contract in failing to deliver the policy, 
would be its money value at the time of breach, with 
interest, if the jury see proper to give interest. The 
indebtedness of the assured to the company for unpaid 
premiums would be deducted from the value found. 

It will be seen that, inasmuch as a part of each 
premium paid was necessarily consumed in the ex- 
penses of the company, and another part in meeting 
the losses on other policies and in dividends, it would 
be manifestly unjust to allow the policy holder to re- 
cover the value of a paid up policy for the entire 
amount of the premiums paid. And yet that was the 
contention of the plaintiffs in this case, and one of 
them was permitted, over the objection of the defend- 
ant, to prove that when the policy was taken out the 
secretary and a soliciting agent of the company told 
him, that at any time, when he stopped paying the 
premiums, the company would give the plaintiffs a paid 
up policy for the amount they had paid in. The trial 
judge charged the jury on this point as follows: "If 
you find that, at the time of the taking out of the 
policy, the plaintiff enquired of the agent of the com- 



508 NASHVILLE : 



Insurance Co. ». Mathews and Wife. 



pany in procuring contracts of insurance, what was the 
meaning of the non-forfeiting clause, and was informed 
that he would receive a paid up policy fur the full 
amount of the money paid by him, payable at the 
death of the assured, or either of them, then the com- 
pany should have given such a paid up policy, and 
the jury should give a verdict for . what such a paid 
up policy was worth at the time of the settlement." 

If the evidence objected to was competent, and the 
charge of the court thereon correct, and the legal 
meaning of the non- forfeiting clause was diflferent, the 
terms of the written contract would be changed by 
parol, and by the declarations of the agent of the com- 
pany. One of the conditions on the policy is : "Agents 
are not authorized to make, alter, or discharge con- 
tracts, * * their duties being simply the reception 
and trasmission of applications for policies and pre- 
miums, under the rules and instructions laid down in 
their letters of appointment." The company reserves 
the power of making its own contracts. 

His Honor, the trial judge, thought that if the 
meaning of the clause of the policy under consideration 
was doubtful, the agent in procuring the policy might 
explain to the parties the meaning of the clause, and 
how it was construed by the company. In this we 
think his Honor erred. No principle is better settled, 
or has been more rigorously adhered to in this State, 
than that a written contract cannot be changed by 
parol testimony, except in a direct suit to reform it. 
Parol evidence is admissible to apply, but not to ex- 
plain the terms of a written instrument: Snodgrass v. 



DECEMBER TERM, 1881. 509 

Insurance Co. t». Mathews and Wife. 

• 

Ward, 3 Hayw., 40. The court, whose duty it is to 
construe contracts in writing, while excluding parol 
evidence from the jury, may hear any testimony which 
may enable it to place itself in the situation of the 
parties, and apply their language: JUiUs v. Jarvis, 12 
Heisk., 451. 463; Chaffin v. Gullet, 2 Sneed, 275; 
Gannaway v. Tarpley, 1 Cold., 572. The testimony 
is admissible* in the case of a latent ambiguity, but it 
merely applies without altering: Mumford v. Railroad, 
2 Lea, 393, 398. The rule is general that where the 
intention of the parties is ambiguously expressed, ere- 
ating a patent ambiguity, parol evidence is not admis- 
sible : 2 Greenl. Ev., sec. 297 ; Bridges v. Robinson, 
2 Tenn. Ch., 720; Myers v. Lindsay, 5 Lea, 331. 
In the case before us, both parties agreed as to • the 
meaning of the contract, that the plaintiffs, upon ap- 
plication for a settlement, was entitled to a paid up 
policy, and the amount of the policy was fixed by the 
nature of the contract. If there was any ambiguity 
in the language, it was patent, and could not be ex- 
plained by parol evidence. 

For these errors, the judgment must be reversed, 
and the cause remanded for another trial. 



/" 



510 NASHVILLE : 



Achv V. Holland. 



J. H. Achy d al. t\ D. L. Holland and Wife, 

Plea in Abatement. Jurisdiction. Where suit is brought against a res- 
ident of the county and counterpart issued to another county for other 
defendants, it is a good plea in abatement by the defendants by coun- 
terpart that the other defendant has no interest in the cause of action, 
and was fraudulently made a defendant in order to draw the cause 
of action within the jurisdiction of the court of the plaintiff's county. 
Propess must be served upon a real and material defendant l)efore 
counterpart can be issued to other counties. -Rich v. Rayky 2 Hum., 
403, overruled. 



FROM DAVIDSON. 



'Appeal in error from the Circuit Court of David- 
son county. N. Baxter Sr.„ J. 

J. S. Frayser for Achy. 

J. L. Watts for Holland. 

Deaderick, C. J., delivered the opinion of the court, 

• 

In January, 1877, Holland and wife brought suit 
in Davidson county, against Achy, Gaines & Wilcox 
of Montgomery county and McNeill of Davidson. The 
suit was brought before a justice of the peace, who 
issued a warrant to Davidson for McNeill, and a coun- 
terpart to Montgomery county for the other parties. 
All were summoned, and the Montgomery county de- 
fendants pleaded in abatement, that McNeill, a brother 
of Mrs. Holland, was made a party defendant, solely 



DECEMBER TERM, 1881. 511 

Achv V. Holland. 

to give jurisdiction to the justice of Davidson, and 
that plaintiffs had no cause of action against him — 
all the other defendants being residents of Montgomery 
county. The justice sustained the plea on demurrer 
and abated the suit, and plaintiffs appealed to the cir- 
cuit court. There the court sustained the demurrer 
to the plea, and heard evidence, without a jury, and 
rendered judgment for plaintiffs ^against the Montgom- 
ery county defendants, and in favor of McNeill ; and 
the defendants, against whom judgment was rendered, 
have appealed to this court. 

In the case of Rwh v. Rayle, 2 Hum., 403, a sim- 
ilar plea in abatement was held insufficient and a de- 
murrer thereto sustained, as not falling within the 
proviso of the act of 1820. 

In the subsequent case of Yancy v. MarHott, Frinby 
A Co.y this court held that where the original summons 
is served on some resident of the county where the 
suit is brought, if he is discharged before trial, leav- 
ing only a non-resident of the county, brought in by 
counterpart, the court loses its jurisdiction ; otherwise 
there would be no difficulty in drawing a man out of 
the jurisdiction where he has a right to be tried. 
The purpose of the act, the court adds, was to save 
multiplicity of suits by bringing all the parties into 
the county where one of the material defendants resides. 

It was never contemplated by the fraraers of the 
act of 1820 (Code, sec. 2821) to allow the process of 
the court to be abused by fraudulently procuring a 
friend's assistance to bring the real parties out of the 
jurisdiction of the courts where they have a right to 



612 NASHVILLE : 



Achv V. Holland. 



be tried, and to subject them to increased trouble and 
expense in defending suits, where jurisdiction is made 
to depend upon the plaintiff's success in passing his 
friend, against whom he has no cause of action, as a 
material defendant to his suit. 

The. reasoning in the case in 1 Sneed is sound, 
and applies more forcibly to a case like this, in which 
there was no pretence of any claim against McNeill, 
and who was retained as a party solely to preserve 
the jurisdiction until final judgment, than to the case 
in which it was used. 

We are of opinion, therefore, that the original pro- 
cess must be served upon a real and material defend- 
ant, before the counterpart can be issued to other 
counties. 

Fortunately, in practice, we have had but few cases 
in which this abuse of process has been attempted. 
But if the doctrine which seems to have been sanc- 
tioned in Bieh v. Rayle, had been applied more fre- 
quently, very great hardships might have resulted. 

We do not mean to say that a party sued by 
original process, must necessarily be shown to be liable, 
but that he must be sued in good faith, and a plea 
to the effect that such a party is sued solely to de- 
feat one jurisdiction of its right and confer it on 
another, is sufficient to abate the action — if clearly 
sustained by proof It follows that the case of Rich 
V. Rayle is overruled. 

This cause, after the demurrer to the plea in abate- 
ment was sustained, was tried and evidence heard, 
showing conclusively that plaintiffs below had no cause 



DECEMBER TERM, 1881. 513 



American Central Ins. C!o v. McCrea, Maiirv & Co. 

of action against McXeill, and that he was only used 
aa a defendant to give jurisdiction to the court in 
Davidson county. 

The court erred in sustaining the demurrer to the 
plea in abatement, and the judgment is reversed, and 
judgment will be entered here overruling the demur- 
rer and abating the suit. 



American Central Insurance Company v, McCrea, 

Maury & Co. 

1. Fire Insurance. Policy. When sfipuJatiom will be considered waived. 

When a policy of insurance on a distillery is issued and delivered 
containing a condition against running at night, but with full knowl- 
edge on the part of the general agent of the company, who counter- 
signed and delivered the policy, that the distillery had always been, 
and was then being run at night, the condition will be considered as 
waived. 

2. Same. Same. Subsequent insurance, A general provision of a policy 

of insurance allowing additional insurance to a specified amount, 
waives to that extent a condition of the policy requiring notice and 
endorsement ujwn the policy of existing or subsequent insurance. 

3. Same. Same. Same. When .^tipulatiim-n wUl be conmJered waived. If 

the general agent of a foreign insuraoce company who delivers and 
countersigns a jx>Ucy, and whose duty it is to endorse on the policy 
existing or subsequent insurance, has knowledge of such insurance, 
and is ready to make the endorsemeYit, but postpones doing so to suit 
his own convenience, when the assured offers to produce the policies 
for the purpose, and in the meantime the property is destroyed by fire, 
a condition of the policy re<iuiring s*ich insurance to be endorsed on 
the policy will be considered as waived, notwithstanding another con- 

33— VOL.8. 



8L513 
4pi376 

* 

(IIP 736 



M4 NASHVILLE: 



American Central Ins. Co. v. McCrea, Maury & Co. 

dition contained in it that the use of general terms, or anything less 
than a distinct specific agreement, clearly expressed and endorsed on 
the policy, shall not be construed as a waiver of any printed or writ- 
ten condition or restriction therein. 

4. Same. Same. Sdme. Af/ent. If the agent, in such case, have knowl- 

edge of additional insurance to a specified amount, and consents to it 
without knowing precisely the insurance company or companies in 
which it is taken, a change of that insurance to a different company, 
otherwise unexceptionable, will not alter the result. 

5. Same. Over injiurance. Charge of court. It wjjs error to charge the 

jury that the only object of the clause against other insurance was to 
guard against the over insurance of pro'i)erty, and the consequent 
temptation to crime, and if the loss in this case far exceeded the 
amount of the insurance of all the policies, the temptation guarded 
against never existed. 

C. Same. Poirers of company and powera of agent to waive ctmcHtiorui. It 
was also error to blend together in the charge the power of the com- 
pany to waive conditions and forfeitures and the power of the agent, 
without clearly and separately presenting the law regulating the 
agent's power, the evidence requiring such a charge. 

FROM DAVIDSON. 



Appeal in error from the Law Court of Davidson 
county. J. C. Guild, J. 

Demoss & Malone, R. McPhail Smith and E. H. 
East for Insurance Co. 

Smith & Allison and Ed. Baxteji for McCrea, 
Maury & Co. 

Cooper, J., delivered the opinion of the court. 

The American Central Insurance Company has ap- 
pealed in error from a judgment recovered against it 
by McCrea, Maury & Co. on one of its policies in- 
suring against loss by fire. 



DECEMBER TERM, 1881. 515 

■ ' 

American Central Ins. Co. v. McCrea, Maury & Co. 

* 

McCrea, Maury & Co. were distillers at Nashville, 
having a large stock of liquors, and valuable machinery 
in the building in which the business was carried on 
and the liquors stored. The building, stock and ma- 
chinery were destroyed by fire on January 28, 1873. 
McCrea, Maury & Co. held, claimed and sued upon 
the following policies, of the following insurance com- 
panies, issued at the times and for the amounts spe> 
cified : 

May 15, 1872. 

1 Liverpool, London & Globe, with privilege of $10,000 additional, S5,000 

2 Franklin, " '• 5,000 

3 American Central, " " 5,000 

January 7, 1873. 

4 Royal, with privilege of S25,000 additional, 5,000 

5 Boatman, " " 2,600 
« Citizens, " " 2,5Q0 

January 10, 1873. 

7 E(iuitable, with privilege of S25,000 additional, 5,000 

January 14, 1873. 

8 Louisiana Mutual, with privilege of $15,000 additional, 5,000 

These policies were all issued for one year from 
their respective dates. The first seven of them cov- 
ered both stock and machinery, one half of the amount 
called for being on each. The last policy, that of the 
Louisiana Mutual, was exclusively on the stock of li- 
quors. The insurance on stock was, therefore, in the 
sum of $20,000, and on machinery $15,000, in all 
$35,000. 

McCrea, Maury & Co. brought separate suits on 
^ach one of these policies. The suit on the first 
policy against the Liverpool, London & Globe Insur- 
ance Company, was compromised before the trial. 
Judgment was recovered on the second policy, against 



516 NASHVILLE: 



I 

American Central Ins. Co. v. McCrea, Maiirv & Co. 



the Franklin Ipsurance Company, and compromised. 
Judgment was also recovered on the last policy, against 
the Louisiana Mutual, which was acquiesced in. The 
Boatman and Citizens companies were corporations of 
the State of Missouri, having their principal place of 
business at St. Louis. The suits on these policies 
were brought in the United States Court at St. Louis, 
and resulted in verdicts and judgments in favor of the 
insurance companies. The suits against the American 
Central, the Royal, and the' Equitable were brought 
in the circuit court at Nashville, and resulted in judg- 
ments against each of the companies, which were re- 
versed, upon appeal in error, by this court. Upon 
the second trial, judgments were again recovered against 
the companies, and these judgments are now before us 
by appeal in error. The case of the American Cen- 
tral will be first considered. ^ 

The policy of the American Central was issued 
May 15, 1872, for one year, in the sum of $5,000, 
one-half on the stock of liquors, and one-half on the 
machinery, with the privilege of $10,000 additional 
insurance. It contained the following provision : • "If 
the assured shall have, or shall hereafter make any 
other insurance on the property hereby insured, or any 
part thereof, without the consent of the company writ- 

• 

ten hereon ; or if the above-mentioned premises shall 
be occupied or used so as to increase the risk, or the 
risk be increased by any means whatever within the 
control of the assured, without the assent of the com- 
pany endorsed hereon; or, if a manufacturing estab- 
lishment, running at night, then in every such case 



DECEMBER TERM, 1881. 517 

American Central Ins. Co. t\ McCrea, Maury & Co. 

the policy shall be void." It also contained this con- 
dition: "The use of general terms^ or anything less 
than a distinct^ specific agreement^ clearly expressed and 
endorsed on this policy, shall not be construed as a 
waiver of any printed or written condition or restric- 
tion therein." It further provided : " This insurance 
may also be terminated, at any time, at the option of 
the company, on giving notice to that effect, and re- 
funding a ratable proportion of the premium for the 
unexpired term of the policy." 

The insurance on the property was, after the issu- 
ance of this policy, increased, as we have seen, to 
%3bfl00. There was proof also tending to show that, 
in the months of October, November and December, 
1872, the buildicg, in which the stock and machinery 
were located, was changed so as to increase the risk. 
It was admitted, moreover, that the distillery had ai- 
rways been run at night, and was so run beford, at the 
time of, and after the issuance of the defendant's policy. 
No endorsement of the consent of the company to the 
additional insurance, change of risk, or running at 
night had ever been made upon the policy. The policy 
was, however, issued at the same time with the policies 
of the Liverpool, London and Globe and the Franklin 
companies, and by the same agents. Peck & Cahill, 
who were the agents of all three of the companies^ 
these companies being foreign corporations. The de- 
fendant, the American Central, was a corporation char- 
tered by the State of Missouri, and having its prin- 
cipal place of business at St. Louis. It was doing 
business in this State under our insurance laws, through 



518 NASHVILLE: 

American Central Ins. Co. v. McCrea, Maury & Co. 

Peck & Cahill as their agents, under a power of at- 
torney which appointed them " agents and attorneys o 
the said company to countersign and issue the policies 
of the company, and otherwise to do and perform the 
customary acts and duties of insurance agents/' 

During the year 1872, and probably before the is- 
suance of the policies of May 15, 1872, although the 
fact does not distinctly appear, McCrea, Maury & Co. 
had taken out policies of insurance on their stock to 
the extent of $5,000, through other agents, in the 
-Stna and Queen's companies, one-half the amount in 
each. These companies declined to continue the risks 
after the changes made by the insured in the building in 
the latter part of the year, and, at the instance of the agents 
of these companies, the policy of the Louisiana Mutual 
was taken out on January 14, 1873, for the same 
amount on the stock alone. Peck & Cahill knew of 
the original insurance for this sum, although they seem 
to have thought that it was exclusively in the JEtna. 
They did not kijow of the policy of the Louisiana 
Mutual until after the fire. At their solicitation, they 
were authorized by McCrea, Maury & Co., early in 
January, 1873, to place $15,000 more of insurance on 
the property, and undertook to do so with the knowl- 
edge that, if eifected, the entire insurance would be 
$35,000. Under this authority, Peck & Cahill did 
obtain the additional insurance in the Royal, the Boat- 
man, the Citizens and the Equitable companies, in all 
$15,000. These policies were received by them before 
the fire, but were not delivered to McCrea, Maury & 
Co. until after the fire. The premiums were paid and 



DECEMBER TERM, 1881. 519 



American Central Ins. Co. v. McCrea, Maury & Co. 

received after the fire. Peck & Cahill procured the 
policies of the Boatman and Citizens companies through 
the secretary of the American Central, by letter which 
gave such information that those companies wrote their 
policies so as to give the privilege of $25,000 addi- 
tional insurance. The Central company itself seems 
to have had no notice of the increase of risk in the 
building, nor of the other insurance of the 7th, 10th 
and 14th of January, except the notice implied from 
the foregoing facts. 

No endorsement of the additional insurance was made 
upon the policy of the American Central. There is 
proof, how^ever, that Pec]^ & Cahill, a week or two 
before the fire, requested McCrea, the active member 
of McCrea, Maury & Co., to bring up the policies 
held by the firm to be endorsed with the additional 
insurance, and that only a few days before the fire 
McCrea proposed, at the office of Peck & Cahill, to 
go after the policies for the purpose of having the 
endorsements made on them, and was requested not to 
do so because of some repairs then being made in the 
office. 

Each of the other policies of January 7th, and the 
two policies of the lOt.h and 14th of January, contained 
the same provisions as those of the American Central 
policy touching over insurance, increase of risk, run- 
ning at night and waiver of conditions. No endorse- 
ment was made on any of them of the consent of the 
company to the previous or subsequent insurance, as 
the case may be. The records of the suits on the 
Boatman and Citizens' policies, introduced in evidence, 



520 ■ NASHVILLE : 



American Central Ins. Co. v. McCrea, Maury & Co. 

show that they were avoided on the ground of over 
insurance. 

It seems to be well settled that when a contract 
of insurance is executed with a full knowledge of an 
existing fact which would render it void under a con- 
dition precedent embodied therein, the condition or its 
breach will be considered as waived, because otherwise 
it would be an unmeaning form, the only effect of 
which would be to deceive and defraud. Where, there- 
fore, a policy of insurance on a house provided on its 
face that if the building insured was on leased land 
the fact must be expressed in writing in the policy, 
and the house was on leased property and the fact 
not so expressed, the truth being known to the agent of 
the company issuing the policy, the court felt itself 
constrained " by the force of authority " to hold that 
the condition was waived : Va7i Schoick v. Niagara 
Fire Ins, Co., 68 N. Y., 434. So, where the policy 
contained a condition that it should be void if refined, 
coal or earth oils were used on the premises, and the 
agent had inspected the premises and knew that kero- 
sene oil was used for lighting them : Bennett v. North 
British, etc. Ins, Co,, 81 N. Y., 273. So, of the con- 
dition that the policy should be countersigned by the 
local agents: Myers v. Life Ins, Co,, 27 Penn. St., 268; 
Hibernia Ins. Co. v. 0^ Connor, 29 Mich., 241. So, of 
the condition that a memorandum of prior insurances 
should be made on the policy : Crane v. National Ins. 
Co., 16 Md., 269. So, of the customary clause in a 
policy that it will not be binding until the premium 
is paid in fiict : Eagan v. ^Etna Fire Ins. Co., 1 1 W. 



DECEMBER TERM, 1881. 521 

- - ■ ■ -■- ■ ■ , ■ — - ^ 

American Central Ins. Co. v. McCrea, Maury & Co. 

Va., 583 ; Trustees, etc, v. Brooklyn Fire Ins. Co,, 19 
N. Y., 305 ; Murphy v. Southern Life Ins, Co., 3 Baxt., 
440. In view of the law as thus settled, no point 
seems to have been made in the court below, or is 
made in this court, upon the fact that the distillery 
of the assured was run at night. It had always been 
so run, and the fact was well known to the general 
agents of the insurer. 

The defense is rested upon the over insurance and 
the increase in the risk by the change of the build- 
ing after the issuance of the policy. 

The policy of the American Central allowed addi- 
tional insurance to the amount of $10,000, and to that 
extent furnished its own rule of construction as to the 
definiteness meant to be required in the consent to fu- 
ture insurance: Westchester Fire Ins. Co, v. Earle, 33 
Mich., 144; Philb^'ook v. New England Mut, Ins. Co, 
37 Me., 137. It is not contended that the additional 
insurance thus allowed required any further consent, or 
any endorsement on the policy. The amount allowed 
was covered by the other two policies issued on the 
same day. The insurance in the iEtna and Queen, 
whether obtained before or afterwards, and the insur- 
ance afterwards obtained in the other companies men- 
tioned were in excess of the amount allowed, and were 
never endorsed on the policy. Nor was the increase 
in the risk, if the risk, was increased by the change 
in the buildings, ever sanctioned by an endorsement 
of the consent of the company on the policy. The 
answer made to these defenses is that the conditions 
were waived by the knowledge of the agents of the 



622 NASHVILLE : 



American Central Ins. Co. v. McCrea, Maury & Co. 

company of the facts upon which they rest, or, as it 
may be otherwise expressed, the company is estopped 
bv tlie facts to make the defenses. 

m 

The question, raised and argued in the other cases 
of McCrea, Maury & Co., that the subsequent insur- 
ance, being void by over insurance or other cause, 
will not affect the policy in suit, does not arise in 
this case. For the policy of the Louisiana Mutual, 
which was on the stock alone, expressly allowed $15,- 
000 of additional insurance, and as the entire amount 
of insurance then existing on the stock was only $20,- 
000, there was no over insurance as to this company. 
And the recovery of judgment on this policy, which 
was acquiesced in, shows that there was no other ground 
for impeaching its validity. There was, therefore, over 
insurance so far as the Am erica q Central is concerned, 
by reason of the subsequent policy of the Louisiana 
Mutual. The issue is consequently narrowed down to 
that of waiver or estoppel. 

*' What acts or declarations," say the learned editors of 
the American Leading Cases, "will operate as a waiver 
of the warranties or conditions, which play a large 
and important part in most modern policies" of insur- 
ance on life or against fire, is a question about which 
the authorities differ too much to be easily reduced to 
order and method. For while the courts have been 
desirous on the one hand to carry out the general 
purpose of the contract as one of indemnity, they have 
been fettered on the other by stipulations introduced 
as safejjards against fraud or malpractice, and the con- 
flict has arisen between the general design and the 



DECEMBER TERM, 1881. 523 

m 

American Central Ins. Co. v. McCrea, Maury & Co. 

incongruity or unfitness of the means employed, which 
has at all periods formed one of the difficulties of the 
law": 2 Araer. L. C, 911, (5th ed.) The struggle 
on the part of the courts has been to protect the in- 
nocent policy holder from the literal operation of con- 
ditions designed for one purpose and used for another. 
Each new decision has been met by a new condition, 
and the struggle is recommenced. Perhaps it would 
have been better to have left the parties to make their 
own contracts in this as in other cases, subject to the 
ordinary rules of interpretation. For after all, the 
insurance companies depend upon popular favor for 
support, and, if their contracts had been found too 
rigid to attain this end, they themselves would have 
simplified them, instead of, as now, exercising their 
iitmost ingenuity to increase their complexity. Our 
duty is, however, to administer the law as we find it. 
The policy in suit undertakes to provide that the 
consent of the company to additional insurance oveq 
the amount allowed, and to any increase of risk, shalli 
be endorsed on the policy, and that this condition shalli 
not be waived except by a specific agreement, clearly | 
expressed and endorsed on the policy. It was at first 
held by the courts, when these requirements were inserted 
in policies, to be essential that these requirements should 
be literally complied with, and that anything short of 
the prescribed formalities would work a forfeiture. 
But the weight of authority is now that if notice be 
duly given to the company, or its agent, of the addi- 
tional insurance or increased risk, and no objection is 
made, the company will be estopped to insist upon a 



624 NASHVILLE : 

American Central Ins. Co. v. McCrea, Maury & Co. 

forfeiture of the policy because their consent was not 
endorsed, as literally required by the stipulation. The 
authorities pro and con are collected in May on Ina., 
sees. 369, 370; 2 Amer. Lead. Cas., p. 911; Wood 
on Ins., sees. 496, 497. 

The reasoning by which the later conclusion is 
reached may be briefly epitomized. In the first place, 
the contract of insurance is not within the statute of 
frauds, and may be by parol : Commercial Iiis. Co. v. 
Union Mut, Ins. Co., 19 How., 318 ; Relief Fire Ins. Co. 
V. Shaw, 94 U. S., 574. The policy may, therefore, 
be renewed by parol, and from year to year: Sanborn 
V. Fireman Ins. Co., 16 Gray, 448 ; Post v. ^tna Ins. Co., 
43 Barb., 351. The policy may be thus renewed after 
the property insured has been sold contrary to its 
terms, and the interest of the assured turned into that 
of a mortgagee : Whited v. Germania Fire Ins. Co. 76 
N. Y., 415. .The contract may be made retrospective 
by parol : Security Fire Ins. Co. v. Kentucky M. <fr F. 
Ins. Co., 7 Bush, 81. It seems to follow that a parol 
permission may equally be given, although the terms 
of the policy require the permission to be endorsed on 
the policy : N. W. Iron Co. v. JEtna Fire Ins. Co., 26 
Wis., 78. Or a forfeiture waived by parol : Warren 
V. Ocean Ins. Co., 16 Me., 439. And, a fortiori, where 
theie is an understanding that the endorsement shall 
be made: Raihbone v. City Ins. Co., 31 Conn., 193. 
I A written contract may be changed by parol, and 

(this although it stipulate that it shall only be changed 
,in writing, for the obvious reason that men cannot 
tie their hands or bind their wills so as to disable 



DECEMBER TERM, 1881. 525 

American Central Ins. Co. v, McCrea, Maury & Co. 

them from making any contract allowed by law, . and 
in any mode in which it may be entered into: Pechner 
V. Phoenix Co., 65 N. Y., 195 ; Ins. Co. v. Wilkinson^ 
13 Wall., 222. " A written bargain is of no higher 
legal degree than a parol one. Either may vary or 
discharge the other, and there can be no more force in, 
an agreement in writing not to agree by parol, than 
in a parol agreement not to agree in writing. Every 
such agreement is ended by the new one which con- 
tradicts it": Per Campbell, J., in Westchester Fire Ins. 
Co. V. Earle, 33 Mich., 153. See to the same effect 
Ins. Co V. Norton, 96 U. S., 234. 

A contract, express or implied, founded upon suffi- 
cient consideration, even though it be only by way of 
injury to one of the parties, would fall within these 
principles. And the cases go to the extent of hold- 
ing that if the agent be authorized to do the act re- 
quired by the condition, he may bind the company by 
his parol waiver. For it is in the nature of a condi- 
tion .precedent to be subject to waiver, and that may 
be either oral or in writing: Pitney v. Glen's Falls 
Ins. Co,, 65 N. Y., 25. In this connection it may be 
noticed that the decisions have transferred to the courts 
of law in this class of cases, the equitable doctrine of 
estoppel, where a parol license or assent has been given 
in place of a license or assent in writing as required 
by the power under which the party acts : Planters 
Ins. Co. V. Myers, 55 Miss., 474 Thus, where prop- 
erty has been given by will upon condition that the 
grantee marry with the written consent of the trustee, 
executor or other person named, a parol assent ha& 



526 NASHVILLE : 



American Central Ins. Co. t;. McCrea, Maury & Co. 

been held good to vest the title: Per Dwight, Com. 
in Pecker v. Phoenix Ins, Co., 65 N. Y., 195, citing 
Lord Strange v. Smith, Amb., 363; Worihington v. Evans, 
1 S. & S., 165. So, in case of leases requiring as- 
sent in writing to sub- letting, or alteration : Macher v. 
Foundling Hospital, 1 V. & B., 188; Richardson y, Evans, 

3 Mad., 218. And the waiver of a forfeiture under 
a policy has been likened to a waiver of a forfeiture 
under a lease : Per Mr. Justice Bradley in Ins, Vo, v. 
Noi^ton, 96 U. S., 242, citing Doe v. Meux, 4 B. & C, 
606; Doe v. Birch, 1 M. & W., 402; Ward v. Day, 

4 B. & S., 335. The doctrine of waiver, it has been 
well said, to avoid the enforcement of conditions in a 
policy, is only another name for the doctrine of es- 
toppel: Globe Mutual Life Ins, Co, v. Wolff, 95 U. S., 
326. There should be, to constitute a waiver of the 
forfeiture of a policy, either a contract supported by 
a consideration, or the necessary elements of an estop- 
pel: Mason's Ben, Soc, v. Baldwin, 5 Rep., 648; Rip- 
ley V. M,na Ins. Co., 30 N. Y., 136, 164. In the lat- 
est case in New York it is said that a waiver need 
not be based upon any new agreement or an estoppel : 
TUus V. Glen's FaU Ins. Co., 81 N. Y., 410. And see 
Viele V. Germania Ins, Co., 26 Iowa, 9 ; Atlantic Ins. 
Co. V. Goodall, 35 N. H., 328. 

In the case before us it is clear that Peck & Cahill, 
the agents of the American Central company, knew of 
the change in the building in which the business of 
the assured was carried on, and did not think the 
change increased the risk. For they not only allowed 
this risk to stand, but procured additional insurance 



DECEBIBER TERM, 1881. 627 

* 

American Central Ins. Co. v. McCrea, Maurv & Co. 

at the same rate of premium. Tyv^) of the policies 
covering the additional insurance wer^ obtained through 
the secretary of the Central American company, and 
by letters which contained the information that the 
insurance was intended to be raised to $30,000. These 
agents were also aware of the outside insurance which 
was first in the .^Titna and Queen, and afterwards in 
the Louisiana Mutual. The proof leaves no doubt 
that these agents intended to enter the proper endorse- 
ments on the policies in relation to the additional 
insurance, and that the endorsement was not made be- 
fore the fire because of their own request, and to suit 
their convenience. It is equally clear that SlcCrea, 
Maury & Co. acted under the belief, induced by these 
agents, that the policy in suit was in force for their 
protection. Under these circumstances, the jury, under 
a proper charge, would have been warranted in finding 
that there was a waiver of the condition, or the for- 
feiture, if the agents had authority to make the con- 
tract or waiver. 

The policy in suit was countersigned by Peck & 
Cahill as the agents of the American Central Compa- 
ny, under a power in writing which authorized them 
to countersign and issue the polices of the company, 
*^and otherwise to do and perform tlie customary acts 
and duties of insurance agents." There is testimony 
in the record tending to show that it was their duty, 
as agents, to make the endorsement on the policy of 
the assent of the company to the additional in^surance 
and change of risk. The insured were expected to 
deal with them in all matters touching the policy* 



528 NASHVILLE: 



American Central Ins. Co. v. McCrea, Maury & Co. 

Such an agency has been held to be sufficient to au- 
thorize the agent to waive the conditions in question^ 
or the forfeiture occasioned by the failure to literally 
comply with them, and to bind the company by their 
acts in that regard in the way of equitable estoppel: 
Wheeler v. Waterlovm Ins. Co., 120 Mass.^ 330; Peoh- 
tier V. Phcrnix Ins Cb., 65 N. Y., 207 ; Ins. Co., v. 
Wilkin^son, 3 3 Wall., 222; Westchester Ins. Co., v. 
Earky 33 Mich., 143. And the objection to the want 
of knowledge of the transfer of the insurance on the 
stock in the iF^tna and Queen companies to the Louis- 
iana Mutual would be purely technical, such additional 
insurance having been known and acquiesced in : Col- 
lins V. Farmvilk Ins. Co., 79 N. C, 279; PUney v. 
Glen's Falls Ins. Co., 65 N. Y., 26; Baptist Society 
V. Hillsborough, etc., Ins. Co., 19 N. H., 550. The 
expressed willingness of the agents t© make the proper 
endorsements of the insurance on the policy in suit, 
and the failure to do so occasioned by their own re- 
quest, would make out a waiver or estoppel within the 
rule. Upon a proper charge, the jury might, there- 
fore, have found that the agents of the company were 
authorized to waive the conditions on the forfeiture for 
non-compliance. 

The only question left, is whether the charge of the 
court was substantially correct within the principles 
thus established. The charge is open to objection as 
to the order in which it presents the law to the jury. 
For, his Honor, the trial judge, first delivered a writ- 
ten charge, the substance of which was that, notwith- 
standing the conditions of the policy in reference to 



DECEMBER TERM, 1881. 529 



American Central Ins. Co. v. McCrea, Maurv & Co. 

7 » 



over insurance and increase of risk, the conditions might 
be waived by the agents if they had authority so to 
do, and that the jury might look to the power- of- 
attorney under which they acted, in connection with the 
policy and the other testimony, to ascertain their au- 
thority. He also charged that the company might 
waive the conditions or the forfeiture, with full knowl- 
edge of the facts, and that the jury might look to the 
conduct of the company, and of its agent sent out to 
investigate the case and adjust the loss, if he communi- 
cated the facts to the company, to determine whether 
there was any such waiver. Afterwards, upon request 
of the company, for certain special instructions, he 
charged all of the propositions as requested, "to be 
taken in connection with his written charge upon the 
subject of waiver and notification as therein expressed." 
The original charge and propositions are not in con- 
flict, as argued by the counsel of the defendant, but 
they were presented in reverse order. In effect, his 
Honor says, that if the policies taken out subsequently 
to the policy in suit were issued without the knowl- 
edge of the company sued, or its agents, they would, 
being prima facie valid, constitute over insurance, and 
render the policy in suit voidable, unless the condition 
was waived as explained in the charge. 

But we are constrained to reverse the judgment 
upon other parts of the charge. His Honor instructed 
the jury that the only object of the clause of double 
insurance was to guard against the over insurance of 
property, and the consequent temptation to crime. And 

if the loss in this case far exceeded the amount of 
34— VOL.8. 



530 . NASHVILLE : 



American Central Ins. Co. v. McCrea, Maury & Co. 

•? : 

the insurance of all the policies, the temptation guarded 
against never existed. This was clearly erroneous. A 
positive stipulation of a contract cannot be dispensed 
with, merely because the jury may think, upon the 
proof on trial, that the supposed object of the stipu- 
lation was otherwise attained. That would be for the 
court and jury to make a contract for the parties, in- 
stead of enforcing the contract made. 

The charge blends together two entirely different 
questions, the power of the insurance company to waive 
a condition of the policy or a forfeiture, and the 
power of the agent. There can be no doubt of the 
power of the company. The doubt was as to the au- 
thority of the agent, and this point should have been 
clearly presented to the jury separate from the other. 
The judge said to them: "If the company, on being 
informed of all the facts touching a violation of the 
conditions and loss by fire, appointed an adjuster to 
ascertain the loss, and settle the amount of the same, 
without objection as to a breach of any of the condi- 
tions, you should look to such facts, in connection 
with the action of the agent, upon the question of a 
waiver of such assent being endorsed on the policy, 
and give them such weight, with all the facts found, 
as they may be entitled to." Undoubtedly, these facts 
would have supplied any defect of authority on the 
part of the agent, but there was no evidence intro- 
duced to justify their submission to the jury in con- 
nection with the question of the agent's authority. 
There is no distinct and separate enunciation of the 
law on the point of the agent's power in the premises. 

Reverse and remand for a new trial. 



DECEMBER TERM, 1881. 531 



Royal Ins, Co. v, McCrca, Maury & Co. 



Royal Ins. Co., v. McCrea, Maury & Co. 

Insurance Policy. Ifffect of subsequent insumiice. A policy of insu- 
rance which is conditioned to be void if the assured shall have, or 
shall hereafter make any other insurance on the property, or any 
part thereof, without the consent of the company written thereon, is 
avoided by subsequent valid insurance of which the first company 
had no notice, although two other companies, whose policies on the 
same property issued contemporaneously with the first policy, were 
also released by the same over insurance as adjudged by the courtfl, 
and although the prior avoidance of these policies reduced the 
amount of the insurance within the additional insurance allowed by 
the first policy. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of Davidson 
county. N. Baxter, J. 

Demoss & Malone, R. McPiiail Smith and E. H. 
East for Ins. Co. 

Smith & Allison and Ed. Baxter for McCrea, 
Maury & Co. 

Cooper, J., delivered the opinion of the court. 

Appeal in error by the Royal Insurance Company 
from a judgment recovered by McCrea, Maury & Co., 
on policy No. 4, in the list of policies given in the 
case of the American Central Company just decided, 
and for the same loss. 

The principal defense, both in this court and the 



532 NASHVILLE : 



Roval Ins. Co. v. McCrea, Maiirv & Co. 



<Joiirt below, was that of over insurance, upon sub- 
stantially the same proof as in the foregoing case, of 
the policies issued, their dates and amounts, and pro- 
ceedings had thereon. The reply to this defense was 
not the same as in the previous case, for, although 
the policy was obtained by the assured through Peck 
& Cahill, these persons w^re not the agents of the 
Royal Insurance Company, and only act^d as insurance 
brokers. A broker, who eflFects insurance under no 
employment by the insurer, but for a commission upon 
the premium received for such risks as he procures to 
be offered and the insurer chooses to accept, is not 
the agent of the insurer in such a sense as to bind 
the insurer by notice to the agent : Devens v. Mechari' 
ics & Tr. Co.y 83 N. Y., 168. The effort, therefore, 
was to show that there was no over insurance. For 
this purpose, transcripts of the suits of McCrea, Mau- 
ry & Co., against the Boatman and Citizens compa- 
nies were introduced in evidence, showing judgment in 
favor of the company, and the argument made that it 
thence conclusively appeared that those policies were 
voidable at the time of the loss. The policy of the 
Royal company was for $5000, with .the privilege of 
^25,000 additional insurance, and required notice of 
previous or subsequent insurance, and the endorsement 
of a memorandum thereof on the policy, under the 
penalty that the assured would not otherwise be en- 
titled to any benefit under the policy. For the reason 
given in the preceding case, there would be no viola- 
tion of the condition so long as the additional insu- 
rance was within the amount allowed. See also, Blake 



I 

k. 



DECEMBER TERM, 1881. 533 



Royal Ins. Co. v. McCrea, Maury & Co. 



V. Exchange Mat. Ins. Co,, 1 2 Gray, 265 ; Benedict 
V. Ocean Im. Co., 1 Daly, 8. 

The policy sued on was not affected, therefore, by 
the other policies of the 7th and 10th of January, for 
these policies only carried the insurance up to $30,000. 
Nor were the other policies of those dates thus far 
vitiated by over insurance, for they were all issued 
with the privilege of the same amount of additional 
insurance. And the insurance of the iEtna and Queen 
had been avoided by the change in the building. All 
of the policies of these dates were prima fade valid. 
It was the over insurance of the Louisiana Mutual of 
the 14th of January, that raised the question, and that 
insurance, if valid, would operate equally on each of 
the previous policies, all of them containing substan- 
tially the same provision as to notice of other insu- 
rance, and endorsement thereof on the policy. The 
policy of the Louisiana Mutual was not affected by 
over insurance, for, as we have seen, it was on the 
stock only and allowed $15,000 additional insurance 
thereon, and the total insurance on stock did not ex- 
ceed $20,000. And the recovery of judgment thereon 
by the assured showed that there was no ground of 
invalidity. 

In this view, the insurance, after the issuance of 
the policy of the I^ouisiana Mutual, exceeded the amount 
allowed by the policy sued on, and the excess was not 
brought to the notice of the defendant, nor, of course, 
endorsed on its policy. The condition of the policy 
was, therefore, violated : Kennedy v. JEtna Ins. Co., 6 
Ins. L. J., 359, opinion of this court. The plaintiffs 



534 NASHVILLE: 



Royal Ins. Co. v. McCrca, Maury & Co. 



sought to avoid the result by insisting that $5000 of 
the intermediate insurance were not real indemnity, be- 
cause the policies, those of the Boatman and Citizens 
companies, had actually been held to be invalid. The 
trial judge took this view, and charged the jury as 
follows : " The fact of having these policies (the Boat- 
man and Citizens), and suing on them, would not of 
itself bar the plaintiffs of their right of showing that 
these policies were really not valid and binding. If 
you find from the proof, that these policies were sued 
upon and judgment rendered in favor of the compa- 
nies, and that these judgments were still in force and 
not appealed from, and that the litigation for said 
sums is ended, the presumption would be that they 
were subject to a valid legal defense, and hence, not 
valid insurance. If you find that these policies, 
amounting to $5000, were not a valid insurance, and 
that the plaintiffs had no more than $30,000 insurance 
at the time of the fire, then you will find for the 
plaintiffs, so far as the sixth stipulation (the stipula- 
tion of the policy touching other insurance), is con- 
cerned." 

It is important to the insurer to know the amount 
of the insurance upon the property insured against loss 
by fire, in order to properly estimate the risk, be- 
cause the greater the amount of the insurance, the less 
the inducement on the part of the assured to watch- 
fulness against loss, and the greater the temptation to 
destroy the property. And it is obvious that the 
interest to know the fact of other insurance is the same 
whether it exist at the time of entering into the con- 



DECEMBER TERM, 1881. 535 

Eoyal Ins. Co. v, McCrea, Maury & Co. 

I^w^— ^i^ 111 ■■■■ 11 ■■■■ ■■■■■» I !■■ — ^^i^—^^-^— mm-^^^m^^mt^m^^^m^m 

tract, or is procured afterwards. The general doctrine 
that a previous or subsequent insurance without notice, 
under a policy requiring notice upon pain of forfeit- 
ure, discharges the insurers from any obligation to pay 
for a loss happening under such circumstances, is well 
settled, and universally recognized. The provision of 
the policy on this subject is one not regarded with the 
jealousy due to other provisions which work forfeit- 
ures, but is upheld without reluctance as a fair and 
just provision for a reasonable and proper purpose: 
May on Ins., sec. 364. 

But what is an over > insurance within the meaning 
of the condition is one of the vexed questions of law 
about which the authorities are hopelessly in conflict. 
It was held in one of the earlier cases, that a prior 
insurance was not less within the condition because it 
was vitiated by the misrepresentation of a material 
fact, and therefore voidable at the election of the in- 
surer : flnrji^fpr y Washington Ins. Cb., 16 Pet., 495, 
And the rule has been recently applied in favor of a 
subsequent insurer, although the prior policy contained 
the same condition, and was itself voidable, at the elec- 
tion of the insurer, because of the subsequent insu- 
rance: Landers v. Watertovm Fire Itis, Co., 25 Alb. 
L. J., 3, a decision of the court of errors of New 
York, reversing S. C, 19 Hun. That court had al- 
ready held that the prior insurer might insist upon a 
subsequent insurance as being within the condition, al- 
though the later policy itself contained a similar con- 
dition : Biffler v. New York Ins. Co., 22 N. Y., 402. 
The reason for these decisions is, that the policy, re- 



536 NASHVILLE : 



Roval Ins. ('o. v. McCrea, Maurv & Co. 



lied on as falling within the condition against other 
insurance of the policy sued on, was valid when issued, 
and, although voidable by the insurer, the condition 
might be waived, whereby the very evil would arise 
which the condition in the policy sued on was in- 
tended to obviate. And, therefore, some courts broad- 
ly hold that subsequent insurance works a forfeiture 
of the prior policy whether legally enforceable or 
not: Allen v. MerchanVa Mat. Ins. Co., 30 La. An., 
1386 ; Suggs v. Liverpool, etc, Ins, Co., 9 Ins. L. J., 
657; Ramsey Manf. Co., v. Mutual Fire Injs, Co., 11 
U. C, 516; Jacobs v. Equitable Ins. Co., 19 U. C, 
259. If the ground of invalidity of the subsequent 
policy has been waived, it would fall within the con- 
dition of the prior policy : David v. Hartford Ins. Co.y 
13 Iowa, 69; Bigler v. New York Im. Co., 22 N. 
Y., 402; Mitchell v. Lycoming MUdual Ins. Co., 51 
Penn., 403; Jacobs v. Equitable Ins. Co., 19 Upper 
Canada, 250. The weight of American authority seems, 
however, to be that the additional insurance, whether 
prior or subsequent, which will fall within the condition, 
must be valid. The cases are given in May on Ins. sec. 
365, note, and 25 Alb. L. J., 3. The rule was followed 
by the supreme court of Virginia in a case in which 
the plaintiff, the assured, admitted the invalidity of 
the second policy under the condition against other in- 
surance, and offered to cancel it in court: Sutherland 
V. Old Dominion Ins. Co., 8 Ins. L. J., 181. Other 
courts have carried the ruling to its logical result, and 
enforced the prior policy, although the subsequent policy 
had been paid or compromised, the condition being 



DECEMBER TERM, 1881. 537 

Royal Ins. >Co. v. McCrea, Maury & Co. 

waived: Thomas v. Ins. Co., 119 Mass., 121; Jack- 
son V. Farmer's Mut. Ins, Q>', 5 Gray, 52 ; Lindsley 
V. Union Ins, Co,, 65 Me., 368 ; Knight v. Eureka 
Ins, Co., 26 Ohio St., 664. For, say these courts, 
if the prior policy be good when issued, it cannot be 
invalidated by the subsequent acts of the other parties 
in treating th^ latter voidable insurance as valid. And 
the Supreme Court of Ohio can see no distinction 
between a policy voidable on its face, or voidable 
for extrinsic matter. The subsequent insurance, say 
the court, is either valid or void, and, in either view, 
the question is', was it insurance? "The rights of the 
parties under the policy sued on, the prior policy, be- 
came fixed at the time the loss occurred, and could 
not be affected by what was subsequently done between 
the assured and third parties : " Insurance Co., v. Holt, 
35 Ohio St., 189. 

"These decisions,^' say the editors of American Lead- 
ing Cases, "avoid the hardship of pronouncing the in- 
surance void in consequence of the failure to give 
notice of another which is equally invalid, and thus 
leaving the assured without a remedy on either policy, 
but are perhaps open to the more serious objection of 
enabling the owner of a house to insure it for its full 
value at two different offices, and keep each set of in- 
surers in ignorance of the contract with others without 
the risk of loss if the secret is discovered, and with 
the certainty of gain if it remains concealed:'^ 2 Am. 
L. C, 899. These decisions did not meet the ap- 
proval of this court when the cases were here before. 
It was then held that if the policies of insurance of- 



638 NASHVILLE : 



Royal Ins. Co. v. McCrea, Maury & Co. 



fered in evidence to show that the defendants in error, 
the assured, had violated the terms of the policies sued 
on, and thereby forfeited their rights of recovery, were 
valid on their face and binding between the parties at 
the time of issuance, no subsequent acts by the par- 
ties thereto, without the knowledge and consent of 
the plaintiffs in error, the insurance companies, would 
defeat their right to claim any forfeiture accruing to 
them by reason of the making and acceptance of such 
policies] in violation of the conditions of those sued on. 
In other words, applying the language to the facts, if 
the Boatman and Citizens policies were' valid on their 
face, and binding between the parties at the time of 
issuance, as they undoubtedly were, and the policy of 
the Royal company was avoided by the subsequent 
over insurance of the Louisiana Mutual, the forfeiture 
which thereby accrued to the Royal company could not 
be defeated by the result of any suit brought by the 
assured on any of these policies. The charge of the 
trial judge was in conflict with this ruling, and there- 
fore erroneous. 

The charge is erroneous for another reason. It ig- 
nores the ground upon which, as shown by the tran- 
scripts introduced in evidence, the two suits brought by 
McCrea, Maury & Co., against the Boatman and Cit- 
izens companies, were decided in favor of the compa- 
nies. One grave objection to the current of Ameri- 
can authority on this subject is, that to restrict the 
condition in question to valid insurance, lets into the 
suit on one policy a wilderness of questions, touching, 
it may be, many other policies not sued on, involves 



DECEMBER TERM, 1881. 539 



Royal Ins. Co. v. McCrea, Maurv & Co. 



the suit in a maze of complexity, .and leads lo the 
anomally of passing, in a suit on one policy, upon other 
policies themselves the subject of separate suits. But 
if these questions are gone into, undoubtedly they can 
influence the result of the pending suit only so far as 
the facts will warrant. And if the facts hav^ already 
been determined in a separate suit on any particular 
policy, these facts must of course be looked to. Now 
the records of the two suits show that each of the two 
companies sued expressly admitted, in its answer to the 
declaration of the plaintifiFs, that it had issued to the 
plaintiffs the policy sued on, and that it put its defense 
upon the ground of subsequent over insurance, which 
issue, upon a charge of the court on that very point, 
was found in favor of the company. If it be con- 
ceded, then, that in this suit, the validity of the 
other two policies may be tested, it clearly appears 
that they were valid when issued, and were avoided 
by the over insurance created by the issuance of the 
policy of the Louisiana Mutual. But the issuance of 
this policy was equally a violation of the same condi- 
tion of the Royal policy now in suit. Upon what 
principle can the over insurance be held to vitiate 
those two policies, and not to vitiate the present policy 
which was first in point of time? It cannot be that 
the right to relief on that grond shall be made to de- 
pend on which suit is first tried. If this suit had 
come on for trial before the other two suits, and th6 
same facts had been introduced in evidence, would not 
the present defendant have been held entitled to relief 
for the violation of the condition of its policy? The 



540 NASHVILLE: 



Koval Ins. Co. r. McCrea, Maurv & Co. 



fact that other companies have successfully relied on 
the same defense, cannot affect its right. The over 
insurance, without notice, was a release of all other 
companies, the conditions of whose prior policies were 
violated, so far as the question of forfeiture was con- 
cerned. The rights of the parties to this extent must 
turn upon the validity" of the policies on their face at 
the time of the issuance of the policy creating the over 
insurance as to the particular policy sued on. Those 
rights cannot be made to turn upon the voidability of 
those policies, or the result of suits or compromises 
between the parties. 

No (juestion was made in this case in the court 
below upon the invalidity of' the policies of the Boat- 
man and Citizen's companies for the failure to prepay 
the premiums. And if the point had been made, it 
would have been set at rest by the record of the suits 
on the . policies. 

The judgment must be reversed, and the cause re- 
manded for a new trial. 



DECEMBER TERM, 1881. 541 



Equitable Insurance Co. v. McCrea, Maury & Ck). 



Equitable Insuuance Co. v. McCrea, Mattry & Co. 

1. Insurance. Policy, Stipulation as f.o payment of prvmiuins. Wlienuxdved. 

A condition in a policy of insnrancce that it sh:ill not be consid- 
ered as binding until the actual payment of the [>remiura, is waived 
by the delivery of the policy without exacting the payment of the 
premium) and, a /m-tioriy if in a suit upon the jxilicy the company 
makes no defense on this ground, and successfully defends on another 
ground. 

2. Same. Same. Suitie. A waiver of the pre-payment j)f the premium 

may be inferred from any circumstance fairly implying that the 
insurer did not intend to insist upon the payment as a condition 
precedent, and it was error, therefore, to chartre the jury that the 
sending of tl\e policy by a foreign company by mail to the agent of 
of the plaintifTs to be l>y him delivered to the plaintiff's, would not of 
itself be sufficient to sustain the inference. 

3. Same. Pleading and practice. Oi'er insurance. If, in an action upon a 

policy the defense to which is ov^er insurance without notice, the as- 
sured can put in issue the validity of other policies equally avoided 
by the same over insurance, it can only be upon some ground which 
the companies issuing those policies could maintain. 

4. Same. Over insurancr The (juestion of over insurance, where the issue 

turns u[)on the validity of several policies equally affected by the over 
insurance, must depend upon the validity of the {>oIicies on their face 
at the date of the issuance of the over insurance, and not at the date 
of the loss. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of Davidson 
county. N. Baxter, J. 

Demoss & Malone, R. McPhail Smith and E. H. 
East for Insurance Co. 



542 NASHVILLE : 



Equita])le Insurance Co. v. McCrea, Maury & Co. 

Smith & Allison and Ed. Baxter for McCrea, 
Maury & Co. 

Cooper, 4«> delivered the opinion of the court. 

• 

The Equitable Fire Insurance Company has appealed 
in error from a judgment recovered against it by Mc- 
Crea, Maury & Co. on policy No. 7 in the list of 
policies given in the case of the American Central 
company, decided at the same time with this case. 

The policy of the Equitable company was for $2,- 
500 on stock, and $2,500 on machinery, all contained 
in the same building, with "privilege of $25,000 addi- 
tional insurance concurrent herewith .^^ It contained 
the same conditions as those quoted from the policy 
of the American Central. The proof introduced in 
reference to the other policies issued, their dates and 
amounts, and the proceedings had thereon, were the 
same in this as in that case. The transcripts of the 
two suits against the Boatman and Citizen's companies 
were introduced, and it was further agreed in writing 
by the parties that those suits were decided in favor 
of the companies upon the ground of over insurance. 
The policy of the Boatman company contained this 
provision: "This company shall not be liable by vir- 
tue of this policy, or any renewal thereof, until the 
premium therefor be actually paid." The correspond- 
ing clause of the Citizen's company was thus worded: 
"No insurance, whether original or continual, shall be 
considered as binding until the actual payment of the 
premium." These two policies were issued in St. Louis, 



DECEMBER TERM, 1881. 543 



Equitable Insurance Co. v. McCrea, Maury & Co. 

Mo., where the companies were located, and sent by 
mail to Peck & Cahill, through whom as insurance 
brokers the insurance was effected. They were received 
by them before, but not delivered to the assured until 
after the fire. The premiums were paid and accepted 
after the fire. The records of the suits brought on 
these policies show that each company, in its answers 
to the plaintiffs^ declaration, admitted that it had issued 
the policy sued on to the plaintiffs, and put its defense 
upon the ground of over insurance. The decision was 
in fiivor of the company on this ground. 

Upon this state of facts, the principal defense relied 
on in the court below in the present suit was also 
that of over insurance. The plaintiffs met the defense 
by insisting that the policies of the Boatman and Cit- 
izen's companies were void, under the conditions above 
quoted, for the failure to pre-pay the premiums, and 
were shown by the result of the suits to have been 
voidable, and, in either view, were not insurance within 
the condition relied on, and therefore there was no 
over insurance. Upon this branch of the case the 
trial judge charged the jury as follows: "To consti- 
tute a breach of this condition, so as to render this 
policy void, * it must appear from the proof that the 
plaintiffs held at the time of the loss other valid in- 
surance upon the same property exceeding $25,000, in 
addition to this policy. Valid insurance means that 
which is neither void nor voidable; that which can 
be enforced by process of law, and to which no suc- 
cessful defense can be made." His Honor then quoted 
the clause of each policy touching the necessity of the 



544 NASHVILLE : 



Equitable Insurance Co. v. McCrea, Maury & Co. 

actual payment of premiums, and, after saying to the 
jury that whether the premium had been paid at the 
time of the loss was a question for them, he added : 
" If the premiums were not paid then, by the terms 
of the condition they (the policies) were not binding 
on the companies, and, consequently, not valid insur- 
ance, unless the proof shows they were delivered with 
the intention on the part of the company of waiving 
the benefit of the condition. But the mere fact of 
sending them through the mail to the agents, of the 
plaintiffs to be delivered by them to the plaintiffs, 
would not, of itself without more, be suflScient evi- 
dence of an intention on the part of the companies to 
waive the benefit of the condition. If you should 
find there had been no payment of the premium on 
these two policies at the time of the loss, and that 
the proof fails to show an intent on the part of those 
companies to waive the benefit of the condition, then 
you will leave those policies out of the estimate in 
summing up the amount of valid insurance which plain- 
tiffs held at the time of the loss." 

In modification of a request of the defendant for 
a special charge touching the over insurance claimed, 
and its concealment from the defendant, the" judge said : 
" If at the time of the loss the plaintiffs had no 
• more than $30,000 of valid insurance, this policy 
(the policy sued on) is not void for over insurance, 
though the plaintiffs may have had an excess before the 
loss, and even at the time of the issuance of the 
policy." The judge, in this connection, refused to 
make the following charge as requested by defendant: 



^ 



DECEMBER TERM, 1881. 545 

Equitable Influrance Co. v, McCrea, Maury cS: Co. 

"If the plaintiffs have paid the premium on these two 
policies (Boatman and Citizen's) or either of them, and 
the companies, or either of them, have accepted the 
same, plaintiffs cannot now be heard to invalidate such 
policy as the premium has been paid upon, and ac- 
cepted by the company." And the following proposi- 
tion : " If the plaintiffs accepted the Boatman and Cit- 
izen's policies, and then brought suit upon them, and 
it does not appear from the proof that they were 
avoided in consequence of the non-payment of premi- 
ums as required by their condition, but for over in- 
surance or some other ground, then the plaintiffs could 
not be heard to complain of them on the ground that 
the conditions in regard to the payment of the pre- 
miums had not been complied with." 

Upon the facts of this case as disclosed in the bill 
of exceptions, there was error both in the charge and 
in the refusals. Each of the two policies of the Boat- 
man and Citizen's companies recited on its fiice that 
the premium had been paid. Such a recital is prima 
facie evidence of the payment. Some of the authori- 
ties hold that the recital, in the absence of fraud, estops 
the insurer, after delivery of the policy, to show non- 
payment of the premium for the purpose of avoiding 
the policy under the condition of pre-payment. Othei 
authorities hold generally that the fact of piyment may 
be rebutted: May on Ins., sec. 3e59. But nearly all 
the cases agree that the delivery of the policy without 
exacting the payment of the premium, is a waiver of 
the condition of pre-payment: Boehen v. Williamsburgh 

Ins. Co., 35 N. Y., 131; Bountonv. Amey^ican Life Ins, 
35 — VOL. 8. 



546 NASHVILLE : 



Equitable Insurance Co. r. McCrea, Maury cS: Co. 

Co,, 25 Conn., 542; Eagan v. yfJina Fire Ins. Co., 11 
W. Va., 583 ; Murphy v. Southern Life Ins. Co., 3 Baxt., 
440. And the waiver may be inferred from a variety 
of circumstances; in fact from any circumstance from 
which the jury may fairly infer that the insurers did 
not intend to insist upon the pre- payment of the 
premium as a condition precedent: May on Ins., 
sec. 360. 

The two policies referred to were, therefore, prima 
JaGie valid so far as the payment of the premium was 
concerned, In the absence of any evidence tending 
to show that the companies had ever attempted to 
avoid the policies on this ground, the sending of the 
policies by mail to the agents of the plaintiffs to be 
delivered by them- to the plaintiffs would certainly be 
a fact from which the jury might infer a waiver of 
the pre- payment. It was error to say, as malter of 
law, that the evidence was not sufficient to warrant 
the finding of a waiver. The jury should have been 
left to draw their own inference. 

The trial judge refused to charge that, if the plain- 
tiffs had paid, and the companies had accepted the 
premiums, the plaintiffs would be estopped to dispute 
the validity of the policies 6n this ground, even if it 
appeared that the plaintiffs had sned upon the policies, 
and the policies had been avoided not upon this, but 
on some other ground. But if the plaintiffs can in 

m 

this suit raise and try the issue of the validity of 
other policies of insurance, it can surely be on no 
other ground than such as they can show that the 
companies themselves could maintain. The plaintiffs 



DECEMBER TERM, 1881. 547 

, I ^ - I ■ 1 ■ ■ • — I M« 

Somerfield v. Insurance Co. 

cannot occupy a better position than the companies 
themselves, 

The over insurance in this case, as in the case of 
the Royal company, was occasioned by the issuance of 
the policy of the Louisiana Mutual. That question 
must be determined by the validity of the policies on 
their face at the date of the issuance of the policy of the 
Louisiana Mutual. The trial judge, therefore, erred in 
telling the jury that the insurance which would come 
within the condition of over insurance, must be insur- 
ance valid at the time of the loss. In this class of 
cases, as we have decided in the Boyal case, the va- 
lidity of the insurance must be tested at the issuance 
of the policy creating the over insurance. 

Reverse and remand. 



A. Somerfield t?. State Insurance Company. 

A policy of insurance comlitioned to be void for other insurance, either 
existing or future, without consent, will be avoided by a subsequent 
policy of which no notice is given, although it contain the same con- 
dition. 



FROM DAVIDSON. 



Appeal in error from the Circuit Court of David- 
son county. Frank T. Reid, J. 



548 NASHVILLE : 



Somerfield v. Insurance Cc>. 



R. McPhail Smith for plaintiff in error. 
J. C. Bradford for defendant in error. 

Cooper, J., delivered the opinion of the court. 

Somerfield sued the State Insurance Company on a 
policy of insurance against loss by fire. The suit was 
successfully defended, and the plaintiff appealed in error. 

On February 26, 1877, the State Insurance Com- 
pany issued to . the plaintiff Somerfield a policy of in- 
surance in the sum of $400 on his stock of goods in 
a certain store, insuring the stock against loss by fire 
for one year. The policy contained this condition : 
" If the assured shall have, or shall hereafter obtain 
any additional insurance on the property hereby in- 
sured, or any part thereof, without the consent of this 
company endorsed hereon, the policy shall be void.^* 
On October 13, 1877, the plaintiff procured from the 
German American Insurance Company another policy 
of insurance on the same stock for $500, insuring 
against loss by fire for one year, of which no notice 
was given to the State Insurance Company. The 
policy of the German American contained this condi- 
tion : " If the assured shall have, or shall hereafter 
make any other contract of insurance, \vhether valid 
or not, on the property hereby insured, or any part 
thereof, without the consent of this company written 
thereon, the policy shall become void.'' On December 
20, 1877, the property insured was destroyed by fire. 

The trial judge held that the second policy consti- 
tuted over insurance within the meaning of the condi- 



DECEMBER TERltf, 1881. 549 

Somerfield r. Insurance Co. 

tion. of the policy sued on, although the second policy 
was itself subject to be avoided by the existence of 
the first policy, of which the German American com- 
pany was shown to have had no notice. Error is 
assigned on this ruling. 

This case does squarely raise the question sought 
to be raised, and which was considered in the case of 
the Royal Insurance Company v. McOrea, Maury <fc Cb, 
The question was not directly presented in that case, 
or in the other cases connected therewith, in all of 
which opinions have been this day delivered, because the 
over insurance relied on in those cases was occasioned 
by the taking out of a policy neither void, nor void- 
able for that or any other reason. There was, there- 
fore, valid over insurance as to all the policies sued 
on in violation of substantially the same condition in 
each, and the question, upon that state of facts, was 
what effect the avoiding of some of these policies by 
the over insurance would have upon the other policies 
equally avoidable by the same insurance. In the suit 
now before us, the second policy is avoided by the 
existence of the first policy without notice, and the 
first policy is equally' avoided by the existence of the 
second policy without notice, if the ruling of the trial 
judge is correct. 

We found in the case of the Royal Insurance Com- 
pany that the authorities on the subject under consid- 
eration were hopelessly in conflict, and that what 
appeared to be the current of those authorities had not 
met the approval of this court when the question was 
before it at a previous term. We now find from the 



550 NASHVILLE : 



Soinerfield r. Insurance Co. 



form of the condition of the policy of the German 
American Insurance Company, that the insurance com- 
panies are themselves meeting the current of authority 
by providing that the other insurance shall be fatal 
"whether valid or not.'' And the learned counsel of 
the plaintiff argues that the State Insurance Company 
must go and do likewise before it can resist the cur- 

« 

rent. But it seems to have been intimated by one 
court that such a clause is itself void : Gee v. Lis. Co,, 
55 N. H., 66. 

The reason assigned to sustain the position taken 
by the larger number of American cases is that the 
additional insurance stipulated against is valid insurance, 
and valid at the time of the loss. And the courts 
adopting the position, are logically compelled to hold 
that insurance, void or voidable at the time, is not 
over insurance within the condition, although the ground 
of avoidance be afterwards waived, and the insurance 
paid. The result is in such cases that the insured 
becomes entitled to collect by law the double insurance 
against which the condition was intended to guard. 
The same result occurs pro taiiio where the second 
company compromises with the insured by buying its 
peace. Decisions which necessarily lead to such a re- 
sult cannot be sound. Moreover, if the doctrine be 
applied to merely voidable insurance, the court, in a 
suit upon one policy may be required to try the va- 
lidity of other policies, and that too without being able 
to make a decision binding between the parties to those 
policies. After a policy has been thus incidentally 
brought in question, and declared valid or invalid, it 



DECEMBER TERM, 1881. 551 

Somerfield v. Insurance Co. 

may be sued upon, and the court, with the aid of the 
parties then directly interested, may come to a differ- 
ent conclusion. It cannot be that the rights of par- 
ties under one contract can be made to depend upon 
the rights of other parties under a different contract. 
Certainly, the condition in question was not intended 
to turn upon the event of a lawsuit between third 
parties, nor to look to the state of affairs which may 
exist at the happening of a loss. It was intended to 
prevent the assured from having, or taking out other 
insurance, which he supposes to be valid, and the con- 
dition* is broken when the additional insurance exists. 
The rule now prevailing was originally adopted in a 
case like the one before us, where the subsequent in- 
surance was itself invalidated by the pre-existing policy. 
But if adopted at all, it must be extended to all cases 
within its reason. And, in that view, as said by the 
supreme court of Ohio, there can be no distinction 
between a policy voidable on its face, and voidable for 
extrinsic matter. The subsequent insurance is either 
valid or void, and, in either event, the question is 
was it insurance: Ins. Co. v. Holt, 35 Ohio, 189. We 
think that the condition intended that the subsequent 
insurance should work a forfeiture whether enforceable 
or not. 

Affirm the judgment. 



552 NASHVILLE : 



Foust V. Board of Publication. 



Jacob Foust, Adm'r, v. Board of Publication et aL 

Bills and Notes. Voluntary and nrtt enfoireahlr. When. A promipsory 
note made payable to the Board of Publication of the Cumberland 
PrcHbyterian Church, a corporation, after the death of the maker, 
*' for the purpose of aiding and assisting said Board in carrying on its 
publishing interest," is purely voluntary, and not enforceable, and 
the fact that donations made to the Board were treated as assets, and 
liabilities created, and the policy of the Board to some extent shaped 
on the faith thereof, would not change the result. 



FROM MONTGOMERY. 



Appeal from the Chancery Court at Clarksville. 
Geo. E. Seay, Ch. 

J. E. Rice for Foust. 

T". L. Yancey for Board. 

Cooper, J., delivered the opinion of the court. 

The complainant's intestate executed in her lifetime 
the following instrument: 

•'I, Mrs. Sarah Thompson of Clarksville, county of 
Montgomery and State of Tennessee, do hereby bind 
myself, my heirs, executors and administrators, to pay 
to the Board of Publication of the Cumberland Pres- 
byterian Church, located at Nashville, Tenn., the sum 
of five hundred dollars ($500.00) for the purpose of 
aiding and assisting said Board in carrying on its pub- 
lishing interest. The said sum of five hundred dollars 



DECEMBER TERM, 1881. 553 

— — • - . — , ^ ^ I I I ■ ■ ■ I --■ I 

Foust V. Board of Publication. 

is to become due, and is made payable from and after 
my natural death. Given under my hand and seal, 
this 13th of April, 1876. her 

Mrs. Sarah X Thompson, 
mark 

Attest: J. W. Riggins.^^ 

Mrs. Sarah Thompson died in the year 1879, and 
complainant, Jacob Foust, was appointed and qualilSed 
as administrator of her estate. The object of this suit 
is to have it legally determined whether the Publish- 
ing Board is entitled to recover from the estate the 
amount called for by the instrument. The chancellor 
decided in .favor of the Board, and the distributees of 
the estate appealed. 

The Board of Publication of the Cumberland Pres- 
byterian Church is a corporation, chartered for the 
purpose of publishing and circulating the denominational 
books, tracts, periodicals and other printed matter which 
may, from time to time, be ordered by the General 
Assembly of the Church, or determined upon by the 
Board. The policy of the Board has been to distrib- 
ute gratuitously denominational books, tracts and peri- 
odicals to the extent of its pecuniary ability, and when 
not able to donate to sell at as cheap a rate as pos- 
sible. It has to depend largely upon donations from 
friends, and has received donations in the form of 
subscriptions, pledges and notes. Having become con- 
siderably involved by purchases of stock, the Board 
appointed agents in 1874 to solicit donations, and large 
sums were obtained by notes on time in this way for 
several years. The note in controversy was delivered 



654 NASHVILLE : 



FouRt V. Board of Publication. 



to the Board bv a mutual friend. No member of 
the Board ever saw the intestate, or eommunioat^^d 
with her on the subject. No other note, as far as 
appears, was ever received payable after the death of 
the maker. The donations made to the Board were 
treated a^ assets, and liabilities were created, and the 
policy of the Board to some extent shaped on the faith 
that they would be paid. No contract, however, was 
ever made in which the note in suit was named or 
used as security. Nor do the minutes of the Board 
show any action in relation to the note. Debts have 
been contracted by the Board since 1876, which remain 
luipaid, but the indebtedness is less than it then was. 

*' An attemi)t to reconcile all the cases which have 
been adjudged touching the validity of voluntary en- 
gagements to pay money for charitable, educational, 
religious or other public purposes would be fruitless": 
Per Allen, J., in Barnen v. Ferine, 12 N. Y., 23. The 
safest course, when the authorities are hoj)elessly in 
conflict and the principles which underlie them are 
unsettled, is to confine the ruling to the particular 
case presented, and adhere as near as possible to the 
adjudications in w^hich the courts concur. 

The instrument under consideration contains a prom- 
ise to pay, after the maker\s death, the sum of money 
specified to the Board of Publication, ^^for the purpose 
of aiding and assisting" the Board in carryhig on its 
publishing business. Whether we treat it as a note 
or simple contract, it is not obligatory without a con- 
sideration: Tate V. Hubert, 2 Ves. Jr., 111. A con- 
sideration mav be either a benefit to the m:iker of the 



DECEMBEE TERM, 1881. 555 

Foust V. Board of Publication. 

promis?, or a detriment to, or obligation upon the 
promisee. The evidence clearly shows that there has 
been no such benefit to the intestate in this case, either 
at the time of executing the instrument or afterwards, 
as would constitute a consideration valuable in law to 
sustain the promise. It further appears that the payee, 
the Board, entered into no obligation at the time of 
the execution and delivery of the instrument. It does 
not appear that the Board, in its corporate capacity, 
ever took any action upon the subject of the instru- 
ment, either in the way of acceptance or otherwise. 
No communication at any time seems to have passed 
between the maker and the payee in relation to the 
note. The death of the promisor before the accept- 
ance of a voluntary promise by express vote or contract, 
or by some unequivocal act on the faith of it to the 
detriment of the promisee, revokes the donation. And 
there is no diiference in this regard between a prom- 
issory note aud an ordinary contract by subscription: 
Helfemtei7i'8 Appeal, 77 Peun. St., 328; McClure v. WU- 
8071, 43 111., 356; Cottage Street Church v. Kendall, 121 
Mass., 528. 

There can be no doubt, as said in the last of these 
cases, that there may be an acceptance of a voluntary 
donation, and the accruing of a detriment to the prom- 
isee sufficient to constitute a valuable consideration in 
law, by some unequivocal act, such as advancing or 
expending money, or erecting a building, in accordance 
with the terms of the contract, and upon the faith of 
the donor's promise. It is obvious, however, that to 
bring a case within the rule, there must be a contract 



556 NASHVILLE : 



Foust V. Board of Publication. 



''in accordance with the terms of which" the money 
is expended, or act done. The injury must accrue 
upon entering into the contract, and not arise from a 
breach of it: Gerhard v. Bates, 2 El. & B., 476. The 
instrument in question contains no request of the maker 
that the payee should do anything, and no engagement 
on the part of the payee with the maker to do any- 
thing in consideration of the promise : Trustees v. Stew- 
art, 1 Comst., 681. The Board of Publication, neither 
at the execution of the instrument nor after <^rards, en- 
tered into any obligation with the maker. It might 
have ceased to do business at any moment. No con- 
tract was ever made, or liability incurred by reason 
of this donation. It has merely been treated, like 
other donations, as a part of the assets of the corpo- 
ration for what it might be worth. 

There are cases which hold that a voluntary prom- 
ise for an educational, charitable or other similar ob- 
ject is valid, the express or implied undertaking of the 
promisee to faithfully appropriate the funds to the pre- 
scribed object constituting a sufficient consideration: 
Ladies Institute v. French, 16 Gray, 196. But the em- 
inent court in which this doctrine seems to have ori- 
ginated has recently said : "In every case in which 
this court has sustained an action upon a promise of 
this description, the promisee's acceptance of the prom- 
ise was shown, either by express vote or contract, 
assuming a liability or obligation, legal or equitable, 
or else by some unequivocal act, such as advancing or 
expending money, or erecting a building, in accordance 
with the terms of the contract, and upon the faith of 



DECEMBER TERM, 1881. 557 

Foust V. Board of Publication. 

the defendant's promise:" 121 Mass., 530. The present 
case, even if the objects of the corporation bring it 
within the rule of the line of cases referred to, does 
not show any obligation or liability of the character 
required. The promise, moreover, is peculiar and one- 
sided. . All that the Board was to do, or was expected 
to do, was to take the money when paid, if it ever 
was paid, and use it. The pre-existing indebtedness 
was no consideration for the promise: University of 
Des Moines v. Livingston, 25 Alb. L. J., 157. The sub- 
sequent indebtedness is not shown to have been in any 
way occasioned by this subscription. The promise was 
purely gratuitous, and will not be enforced by law. 

The decree of the chancellor must be reversed, but 
the costs of the entire cause will be paid by the com- 
plainant as administrator out of ^he assets of the estate. 



558 NASHVILLE : 



8L &f>8 
13L 03 



Telegraph Co. v. Onlway, Gordon & ^rcGuire. 



Western Union Telegraph Co. t\ Ordway, Gordon 

& McGuiRE. 

Supreme CoriiT Practice. Lf>.*t rcronl. Iloir .<uppjiefh CkrL-^s romj)*'Hr 
nation. If the transcript of a record in this court properly filed is lost, 
it may be supplied by the parties u}>on lui order made for that pur- 
pobc, or by consent, but the court has no authority to compel the clerk 
4>f the inferior court to make out a m'W transcript and file the same 
without compensation. 



FROM DAVIDSON. 



RETURN TO CERTIORARI. 

Mat Allen for Olerk. 

Cooper, J., delivered the opinion of "the court. 

In this cause, which is an appeal in error from 
the circuit court of Davidson county, a transcript of 
the record was duly filed by the clerk of that court. 
The transcript was taken out of the office of the clerk 
of this court by the counsel of one of the parties, and 
he handed it to the counsel of the other party. On 
a former day of the present term, the counsel of both 
parties appeared and agreed that the transcript was 
lost, and, at their instance, an order was made that a 
certiorari issue to the clerk of the ("ircuit court reijuir- 
ing him to make out and file a new transcript of the 
proceedings in the cause. The clerk returns on the 



DECEMBER TERM, 1881. 559 

Telegraph Co. d. Ordway, Gordon c^ McGuire. 



certiorari that he has prepared a certified copy of the 
proceedings as required, which he is ready to file upon 
the payment of his fees therefor, and he submits to 
the court whether he ought to be required to file the 
same without such payment. We thought that the 
clerk was fairly entitled to have the point determined, 
the certiorari having been awarded without notice to 
him, and it being made the duty of the courts, upon 
application of the clerks, to decide any question aris- 
ing under the law touching their compensation: Code, 
sec. 4523. It seemed^ to us, moreover, a suitable oc- 
casion, inasmuch as the same order had been made in 
other cases upon similar facts, to enquire into the pro- 
priety of the proceeding, and to settle the practice. 
We suggested to the counsel of the parties and of the 
clerk that arguments would be received, and that the 
point for consideration was not whether the clerk was 
bound to obey the order of this court, but whether 
the order itself was proper. Arguments have been 
submitted, and the question considered. 

It is made the duty of the several clerks of the 
inferior courts of this State, when a cause is taken 
by appeal in error to this court, to make out and 
transmit to the clerk of the supreme court of his di- 
vision, a transcript of the record within a specified 
time: Code, sec. 4041. The statute fairly ^implies, 
and such has been the practice, that the duty shall 
be performed without the pre-pay ment of the fees of 
the clerk for making out, certifying and transmitting 
the transcript. The fees for these services have al- 
ways been included in the bill of costs, and adjudged 



660 NASHVILLE : 



Telegraph Co. v. Ordway, Gordon <fe McGuire. 

upoa final hearing. If the clerk transmit an imper- 
fect transcript, his fees . will, on motion, be stricken 
out of the bill of costs, and he may, moreover, be 
charged with the costs of the certiorari awarded to 
bring up a more perfect record : Code, sec. 4557. 
The mode of correcting the errors or omissions in the 
original transcript is by the award of a certiorari from 
this court to the clerk of the inferior court requiring 
him to make out and file a more perfect record: 
Code, sec. 3124; Hamilton v. HodgkinSy 1 Tenn., 109. 
If the clerk is not able to collect his fees from the 
party against whom they are finally adjudged, he may 
recover against the other party, by suit on motion, 
his fees for such services as may have been rendered 
at the instance of that party: Evnng v. lALsky 4 Yer., 
492; Carren v. Breed, 2 Cold., 465; Code, sec. 3204. 
We have not found, nor has our attention been called 
by counsel to any other provision of law regulating 
the duty of the clerks of the inferior courts in rela- 
tion to the causes in this court, or conferring upon 
this court direct authority over those clerks in regard 
to such cases. 

The clerks of the several courts of this State are 
required by law to make out and deliver to any per- 
son applying therefor, a correct transcript, properly 
certified, of any paper or record in his office, " on 
payment of the legal fees": Code, sec. 4040 sub-sec. 9, 
and sec. 3792. The statute is general, and authorizes 
the clerk to demand the payment of his legal fees for 
such services before the delivery of the transcript. It 
undoubtedly applies to all cases where the services are 



DECEMBER TERM, 1881. 561 

Telegraph Co. r. Ordway, Gordon & McGuire. 

rendered, except those cases in which he is required 
by statute to furnish the record without pre- payment, 
or in which the courts are vested with authority to 
command similar services without payment in advance. 
The statutory regulations have already been quoted. 
This court has the power to adopt and use the neces- 
sary means for the exercise of its appellate jurisdiction, 
for otherwise it would not answer the purposes of its 
creation : Foster v. Burem, 1 Heis., 783. And it may, 
consequently, issue any writ or process necessary for 
the exercise or enforcement of its jurisdiction : Code, 
sec. 4503 ; King v. Hampton^ 3 Hay w., 59 ; Ing v. Davey, 
2 Lea, 276. It does not follow, however, that it will 
exercise its authority without requiring that the ser- 
vices demanded be paid for, unless it is otherwise pro- 
vided by law. If it is made the duty of the clerk 
of a lower court to file a transcript in this court, and 
he fail to do so, or file an imperfect transcript, it is 
of course to award a certiorari to compel him to 
comply with the law. This is required, as we have 
seen, when an appeal or appeal in error is per- 
fected. But if a party, instead of appealing, sue 
out a writ of error, it is his duty, not the duty of 
the clerk, to. file the record: Gillespie v. Goddard^ 1 
Heis., '777. And the court has no power in such case, 
as we have repeatedly held, to make an order upon 
the clerk to deliver to the suitor a transcript of the 
record, where the only ground laid for the order is 
that the clerk demands payment of his legal fees be- 
fore delivery. The court can only compel the clerk 

to perform an official duty, and then only when all 
36_voL. 8. 



662 NASHVILLE : 



• Telegraph Co. v. Ordway, Gordon «& McGuire. 

the pre-requisites to the performance have been com- 
plied with : Ricks ex parte^ 7 Heis., 364. 

There is no statute requiring the clerk of an infe- 
rior court, after he has once made out and filed a 
certified transcript of the proceedings in a cause brought 
up by appeal, to make out and file another transcript. 
There is no propriety or justice in requiring an inno- 
cent officer to suffer for the misfortunes of suitors, nor, 
a fortioriy for a loss occasioned by the negligence of 
the clerk of this court, or of the suitors in the cause, 
or of their counsel, or some one of them. There is 
no statute requiring this court to compel the clerk to 
make out and file another transcript. Nor is that the 
proper mode of supplying a lost record of this court. 
The power to supply records lost or destroyed is in- 
herent in every court, because essential to the per- 
formance of its functions: State v. Harrison, 10 Yer., 
546; Scott v. Watson, 3 Tenn. Ch., 652. The provis- 
ion of the Code, sec. 3907, is only the common law 
on the subject of supplying lost records. It has been 
held to apply to this court: Lane v. Jones, 2 Cold., 
318. If the parties require the court to act, they 
must prove the loss by proper evidence, and procure 
an order finding the fact of loss and directing that 
the loss be supplied by the best evidence the nature 
of the case will admit of. When the evidence is 
produced, the court must adjudge upon its sufficiency, 
and order the supplied papers to be substituted for 
the original: Id.; Cornelius v. City Bank, 3 Tenn. Ch., 
5. The best evidence would ordinarily be a new 
transcript certified by the clerk of the lower court. 



DECEMBER TERM, 1881. 563 

Wright V. The State. 

But the duty and expense of supplying it would fall 
upon the litigants, not upon the clerk. The cost of 
the proceeding under the statute would be taxable. 
If the parties choose to agree that the record is lost, 
and supply it by consent with a new transcript, they 
may do so. The court has no authority to coerce 
the clerk to perform the work without payment, at 
any rate upon the state of facts now before us. The 
order under consideration was, therefore, improvidently 
granted, and must be set aside. 



James Wright v. The State. 

Criminal Law. Disturbing public worship. Upon tlie trial of defendant 
for wilfully disturbing an assemblage of persons met for religious 
worship, it is not error to charge that if the defendant voluntarily 
entered into a fight at the church door, and Jthereby disturbed a wor- 
shipping assemblage in the church, he would be guilty. 



FROM SUMNER. 



Appeal in error from the Circuit Court of Sumner 
county. Jo C. Stark, J. 

Wilson & Head for Wright. 
Attorney- General Lea for the State. 



8L563 
UL 33 



564 NASHVILLE: 



Wright r. The State. 



Cooper, J., delivered the opinion of the court. 

It is made a misdemeanor by statute to wilfully 
disturb or disquiet any assemblage of persons met for 
religious worship, by noise, profane discourse, rude or 
indecent behavior, or any other act, at or near the 
place of worship: Code, sec. 4853. The plaintiff in 
error was presented for wilfully disturbing an assem- 
blage of persons met for religious worship at a church 
named, "by noise, quarrelling, profane discourse, rude 
behavior, and by swearing and fighting." Having been 
convicted, he has appealed in error. 

The defendant, while on his' way to the church on 
the occasion referred to, driving a buggy, undertook to 
pass the family wagon of a neighbor, in which there 
were -several persons of both sexes going to the same 
church, and in doing so struck one of the mules 
drawing the wagon, thereby causing the team to run 
to one side of the road, and endangering the vehi- 
cle and its occupants. Buck Branham, one of these 
occupants, became angry, and said to the defendant you 
must not do that any more. When the defendant 
reached the church, he did not go in, although the 
services had commenced, but stood upon the steps at 
the door until the other party came up. When Buck 
Branham got upon the steps, defendant told him: "I 
suppose you say I ran against your mule." Branham 
replied: "Yes, I did say so, and you did do it." 
Defendant retorted: "You are a liar," some of the 
witnesses say with an oath. Branham at once collared 
the defendant, pushed him back against the church, and 
struck him, the defendant returning the blow. They 



DECEMBER TERM, 1881. 565 

Wright V. The State. 

were then 'separated. In the meantime, the religious ser- 
vices were interrupted, some of the audience running out 
of the door, and others jumping out of the windows. 
There is some confliet in the testimony as to the de- 
tails of the occurrence, but the jury would have been 
well warranted in finding the facts to be as given. 

These facts do show a disturbance of a worship- 
ping assemblage by noise, quarrelling, swearing and 
fighting, in which the defendant participated, and which 
was brought on by his voluntary act in remaining at 
the church door, and commencing the conversation with 
the other participant. Whether the disturbance was 
willful on the part of the defendant was a question 
for the jury, and the evidence is sufficient to sustain 
their finding. 

The trial judge, after reciting the statute, said to 
the jury: "If you find from the proof, thsrt; the de- 
fendant did wilfully disturb or . disquiet an assemblage 
of persons met for religious worship by any of the 
means, or in the manner set forth in the statute, you 
should so find, otherwise you should acquit him. It 
is insisted for the defendant that what he did was in 
defending himself from the violence of Branham. Upon 
this I charge you that a man has the right to defend 
himself against violence or threatened violence, even 
under the very pulpit, and if in so^ doing he disturbs 
the public worship, he would not be guilty. If, on 
the other hand, the defendant voluntarily entered into 
a fight ^ at the church door, and thereby disturbed the 
public worship, he would be guilty, and you should 
so find." 



566 NASHVILLE : 



Wright r. The State. 



The charge is brief, but it substantially ^ays to the 
jury, if you find from the proof that the defendant has 
wilfully disturbed the religious assembly mentioned by 
noise, profane discourse, rude or indecent behavior, 
or any other act, he is guilty, unless indeed you 
find that what he did was merely defending himself 
from personal violence. The charge to this extent was 
certainly as fevorable as the defendant could have 
asked. And if the charge erred in brevity, the error 
was corrected by the first special request of the de- 
fendant, which undertook to recite the facts claimed by 
him to be proved, the court saying to the jury, in 
effect, that if they found that what defendant did was 
in self-defense they should acquit him. The jury 
found as a fact that the defendant did by some act, 
not in self-defense, wilfully disturb the worshipping as- 
semblage. There is clearly enough, outside of the 
personal struggle between the parties, to sustain the 
verdict upon the question of fact and intent. For, the 
stopping of the defendant at the church door, and ad- 
dressing his adversary in the first instance, and retort- 
ing in the angry, and probably profane language used, 
were of themselves sufficient to make out the offense, 
the jury being satisfied of the criminal intent. 

Objection is taken to that part of the charge in 
which the trial judge said that if the defendant volun- 
tarily entered into the fight, and thereby disturbed the 
public worship, he would be guilty. The argument 
is that if the defendant voluntarily entered into the 
fight, it was with the intent of committing an assault 
and battery, not with the intent of disturbing the wor- 



DECEMBER TERM, 1881. 567 

Wright V. The State. 

shipping assembly, and that he can only be punished 
for the first offense. The logic of the argument is 
that there could only have been one intent in fact, or 
that the particular intent swallowed up all other in- 
tents. " In the affairs of life," says Mr. Bishop, ^' it 
is seldom a man does one thing prompted by one mo- 
tive alone, to accomplish an end," The general rule 

is, that if a man intends to do what the law for- 

• 

bids, there need be no other evil intent. He is pre- 
sumed to intend the necessary consequences of his ac- 
tion. If a person attack another at or near a place 
of worship, the necessary result of which is to disturb 
the assembly, the law will presume that he had the 
intent to disturb the assembly, as well as the intent to 
J commit an assault and battery. It would be a case 
of fwo intents. The rule in such cases is, that the 
iotent necessary to constitute the offense for which the 
defendant is being tried, will not be affected by an- 
other criminal intent. Thus, if one with the princi- 
pal purpose of robbing another, attacks him, and, to 
accomplish the robbery, wounds him with intent to d'o 
grievous bodily harm, the latter intent, though sec- 
ondary to the former, is within the statute on the 
latter subject. If both intents exist, it is immaterial 
which was the principal, and which the secondary in- 
tent : 1 Bish. Crim. Law, sec. 339. It has, there- 
fore, been decided, in a case in which the very point 
now contended for was insisted upon, that it was no 
defense to an indictment for obstructing an officer in 
the discharge of his duties, that the intent of the de- 
fendant was, by an assault and battery, to inflict per- 



568 NASHVILLE : 



Wright r. The State. 



sonal chai-tisement on the oflScer: United States v. Keen^ 
5 Mason, 453. \ 

The argument maintains that the State could only, 
if the defendant voluntarily entered into the fight, pros 
ecute him for the assault and battery. But the law 
is clearly otherwise. Subject to the doctrine of the 
merger of crimes which has no application to the class 
of cases under consideration, a person may be held 
liable for any crime, of whatever nature, which can be 
legally carved out of his act. The power of election 
rests with the State, not with the criminal. "If the 
evidence show him to be guilty of a higher offense 
than he stands indicted for, or of a lower, or of one 
differing in nature, whether under a statute or at com- 
mon law, he cannot be heard to complain; the ques- 
tion being, whether it shows him to be guilty of the 
one charged:" 1 Bish. Crim. Law, sec. 791. 

It is another question, whether a defendant, if he 
has been convicted of one offense, can plead the con- 
viction in bar of an indictment for another offense. 
These are the cases which have been cited in argu- 
gument. There has been no former conviction or ac- 
quittal here. And if there had been as to the assault 
and battery, it is almost certain that it could not have 
been relied on as a defense in this case for the reason 
given in Rosa v. State, 4 Lea, 442. 

There is no error in the judgment, and it must be 
affirmed. 



DECEMBER TERM, 1881. 569 



Alexander, Ex'r., v. Wallace et ml. 



James Alexander Ex'.r. v. Joseph Wallace et al. 

y. Wills. Ccmatruclion. A will provided aa follows : " I direct that the 
remainder of my estate, both real and personal, be divided among 
my heirs according to the laws of the State of Tennessee now in force, 
none preferred, none discriminated against." Held, that the heirs of 

• the '.testator would take his land as provided by the statute of de- 
scents, and his next of kin would take the personalty a« prescribed 
bv the statute of distributions. 

2. Same. Executor. Pbwer to sell land. A testator by his will appointed 
an executor ^* to take charge of my entire estate, and execute this, my 
last will and testament, and to do so without any bond, or any liabil- 
ity for error and defects either to my heirs or to any court, relying on 
his integrity and judgment entirely." Held, that the clause did not 
convert the testator's realty into personalty, or give the executor any 
authority to sell the land. 



FROM SUMNER. 



App€tal from the Chancery Court at Gallatin. Geo. 
E. Seay, Ch. 

J. J. Turner for complainant. 

S. F. Wiii^ON for defendants. 

ft 

Cooper, J., delivered the opinion of the court. 

Bill filed by the executors of the last will and 
testament of James Wallace, deceased, against the heirs 
and distributees, who are also devisees and legatees, 
for a Qonstruction of the will. The testator died in 
October, 1881, about eighty- three years of age, without 
wife or child. He was the youngest of twelve chil- 



570 NASHVILLE: 



Alexander, Ex'r., v. Wallace el ai. 



dreD, and had survived all of his brothers and sisters, 
each of whom left children surviving. Many of these 
children died before the testator leaving children, and 
some of these latter children also died before the tes- 
tator, leaving children. The descendants of his broth- 
ers and sisters are the heirs and distributees of the 
testator. They are numerous, and reside in various 
states find territories. The testator owned at his death 
over nine hundred acres of land in this State, and 
about eighteen hundred and eighty acres in the State 
of Texas. He had a large personal estate. The will 
was written by one of the subscribing witnesses, a man 
of age, and of fine business capacity, a cashier of a 
bank for a number of years, and in the habit of draw- 
ing up legal instruments, but not a lawyer. 

The testator provides by his will for the payment 
of his debts and for certain old servants who are 
named. His will then proceeds as follows: 

" Fourth. I direct that the remaind